Florida Senate - 2014 PROPOSED COMMITTEE SUBSTITUTE
Bill No. SB 1582
Ì664100^Î664100
576-03677-14
Proposed Committee Substitute by the Committee on Appropriations
(Appropriations Subcommittee on General Government)
1 A bill to be entitled
2 An act relating to rehabilitation of petroleum
3 contamination sites; amending s. 376.3071, F.S.;
4 revising legislative findings and intent regarding the
5 Petroleum Restoration Program and the rehabilitation
6 of contamination sites; providing requirements for
7 site rehabilitation contracts and procedures for
8 payment of rehabilitation work under the Petroleum
9 Restoration Program; limiting eligibility for funding
10 under the Early Detection Incentive Program; deleting
11 obsolete provisions relating to reimbursement for
12 certain cleanup expenses; repealing s. 376.30711,
13 F.S., relating to preapproved site rehabilitation;
14 amending s. 376.30713, F.S.; providing that applicants
15 can use a demonstration of a cost savings in meeting
16 the required cost share commitment if bundling
17 multiple sites; amending ss. 376.301, 376.302,
18 376.305, 376.30714, 376.3072, 376.3073, and 376.3075,
19 F.S.; conforming provisions to changes made by the
20 act; providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 376.3071, Florida Statutes, is amended
25 to read:
26 376.3071 Inland Protection Trust Fund; creation; purposes;
27 funding.—
28 (1) FINDINGS.—In addition to the legislative findings set
29 forth in s. 376.30, the Legislature finds and declares:
30 (a) That significant quantities of petroleum and petroleum
31 products are being stored in storage systems in this state,
32 which is a hazardous undertaking.
33 (b) That spills, leaks, and other discharges from such
34 storage systems have occurred, are occurring, and will continue
35 to occur and that such discharges pose a significant threat to
36 the quality of the groundwaters and inland surface waters of
37 this state.
38 (c) That, where contamination of the ground or surface
39 water has occurred, remedial measures have often been delayed
40 for long periods while determinations as to liability and the
41 extent of liability are made and that such delays result in the
42 continuation and intensification of the threat to the public
43 health, safety, and welfare; in greater damage to water
44 resources and the environment; and in significantly higher costs
45 to contain and remove the contamination.
46 (d) That adequate financial resources must be readily
47 available to provide for the expeditious supply of safe and
48 reliable alternative sources of potable water to affected
49 persons and to provide a means for investigation and cleanup of
50 contamination sites without delay.
51 (e) That it is necessary to fulfill the intent and purposes
52 of ss. 376.30-376.317, and further it is hereby determined to be
53 in the best interest of, and necessary for the protection of the
54 public health, safety, and general welfare of the residents of
55 this state, and therefore a paramount public purpose, to provide
56 for the creation of a nonprofit public benefit corporation as an
57 instrumentality of the state to assist in financing the
58 functions provided in ss. 376.30-376.317 and to authorize the
59 department to enter into one or more service contracts with such
60 corporation for the purpose provision of financing services
61 related to such functions and to make payments thereunder from
62 the amount on deposit in the Inland Protection Trust Fund,
63 subject to annual appropriation by the Legislature.
64 (f) That to achieve the purposes established in paragraph
65 (e) and in order to facilitate the expeditious handling and
66 rehabilitation of contamination sites and remedial measures with
67 respect to contamination sites provided hereby without delay, it
68 is in the best interests of the residents of this state to
69 authorize such corporation to issue evidences of indebtedness
70 payable from amounts paid by the department under any such
71 service contract entered into between the department and such
72 corporation.
73 (g) That the Petroleum Restoration Program must be
74 implemented in a manner that reduces costs and improves the
75 efficiency of rehabilitation activities to reduce the
76 significant backlog of contaminated sites eligible for state
77 funded rehabilitation and the corresponding threat to water
78 resources, the environment, and the public health, safety, and
79 welfare.
80 (2) INTENT AND PURPOSE.—
81 (a) It is the intent of the Legislature to establish the
82 Inland Protection Trust Fund to serve as a repository for funds
83 which will enable the department to respond without delay to
84 incidents of inland contamination related to the storage of
85 petroleum and petroleum products in order to protect the public
86 health, safety, and welfare and to minimize environmental
87 damage.
88 (b) It is the intent of the Legislature that the department
89 implement rules and procedures to improve the efficiency of the
90 Petroleum Restoration Program. The department is directed to
91 implement rules and policies to eliminate and reduce duplication
92 of site rehabilitation efforts, paperwork, and documentation,
93 and micromanagement of site rehabilitation tasks.
94 (c) It is the intent of the Legislature that rehabilitation
95 of contamination sites be conducted with emphasis on first
96 addressing the sites that pose the greatest threat to water
97 resources, the environment, and the public health, safety, and
98 welfare, within the availability of funds in the Inland
99 Protection Trust Fund, recognizing that source removal, wherever
100 it is technologically feasible and cost-effective, significantly
101 reduces contamination or eliminates the spread of contamination
102 and protects water resources, the environment, and the public
103 health, safety, and welfare.
104 (d)(c) The department is directed to adopt and implement
105 uniform and standardized forms for the requests for preapproval
106 site rehabilitation work and for the submittal of reports to
107 ensure that information is submitted to the department in a
108 concise, standardized uniform format seeking only information
109 that is necessary.
110 (e)(d) The department is directed to implement computerized
111 and electronic filing capabilities of preapproval requests and
112 submittal of reports in order to expedite submittal of the
113 information and elimination of delay in paperwork. The
114 computerized, electronic filing system shall be implemented no
115 later than January 1, 1997.
116 (e) The department is directed to adopt uniform scopes of
117 work with templated labor and equipment costs to provide
118 definitive guidance as to the type of work and authorized
119 expenditures that will be allowed for preapproved site
120 rehabilitation tasks.
121 (f) The department is directed to establish guidelines for
122 consideration and acceptance of new and innovative technologies
123 for site rehabilitation work.
124 (3) CREATION.—There is hereby created the Inland Protection
125 Trust Fund, hereinafter referred to as the “fund,” to be
126 administered by the department. This fund shall be used by the
127 department as a nonlapsing revolving fund for carrying out the
128 purposes of this section and s. 376.3073. To this fund shall be
129 credited all penalties, judgments, recoveries, reimbursements,
130 loans, and other fees and charges related to the implementation
131 of this section and s. 376.3073 and the excise tax revenues
132 levied, collected, and credited pursuant to ss. 206.9935(3) and
133 206.9945(1)(c). Charges against the fund shall be made pursuant
134 to in accordance with the provisions of this section.
135 (4) USES.—Whenever, in its determination, incidents of
136 inland contamination related to the storage of petroleum or
137 petroleum products may pose a threat to water resources, the
138 environment, or the public health, safety, or welfare, the
139 department shall obligate moneys available in the fund to
140 provide for:
141 (a) Prompt investigation and assessment of contamination
142 sites.
143 (b) Expeditious restoration or replacement of potable water
144 supplies as provided in s. 376.30(3)(c)1.
145 (c) Rehabilitation of contamination sites, which shall
146 consist of cleanup of affected soil, groundwater, and inland
147 surface waters, using the most cost-effective alternative that
148 is technologically feasible and reliable, and that provides
149 adequate protection of water resources and the public health,
150 safety, and welfare, and that minimizes environmental damage,
151 pursuant to in accordance with the site selection and cleanup
152 criteria established by the department under subsection (5),
153 except that this paragraph does not nothing herein shall be
154 construed to authorize the department to obligate funds for
155 payment of costs that which may be associated with, but are not
156 integral to, site rehabilitation, such as the cost for
157 retrofitting or replacing petroleum storage systems.
158 (d) Maintenance and monitoring of contamination sites.
159 (e) Inspection and supervision of activities described in
160 this subsection.
161 (f) Payment of expenses incurred by the department in its
162 efforts to obtain from responsible parties the payment or
163 recovery of reasonable costs resulting from the activities
164 described in this subsection.
165 (g) Payment of any other reasonable costs of
166 administration, including those administrative costs incurred by
167 the Department of Health in providing field and laboratory
168 services, toxicological risk assessment, and other assistance to
169 the department in the investigation of drinking water
170 contamination complaints and costs associated with public
171 information and education activities.
172 (h) Establishment and implementation of the compliance
173 verification program as authorized in s. 376.303(1)(a),
174 including contracting with local governments or state agencies
175 to provide for the administration of such program through
176 locally administered programs, to minimize the potential for
177 further contamination sites.
178 (i) Funding of the provisions of ss. 376.305(6) and
179 376.3072.
180 (j) Activities related to removal and replacement of
181 petroleum storage systems, exclusive of costs of any tank,
182 piping, dispensing unit, or related hardware, if soil removal is
183 approved preapproved as a component of site rehabilitation and
184 requires removal of the tank where remediation is conducted
185 under this section s. 376.30711 or if such activities were
186 justified in an approved remedial action plan performed pursuant
187 to subsection (12).
188 (k) Activities related to reimbursement application
189 preparation and activities related to reimbursement application
190 examination by a certified public accountant pursuant to
191 subsection (12).
192 (k)(l) Reasonable costs of restoring property as nearly as
193 practicable to the conditions that which existed before prior to
194 activities associated with contamination assessment or remedial
195 action taken under s. 376.303(4).
196 (l)(m) Repayment of loans to the fund.
197 (m)(n) Expenditure of sums from the fund to cover
198 ineligible sites or costs as set forth in subsection (13), if
199 the department in its discretion deems it necessary to do so. In
200 such cases, the department may seek recovery and reimbursement
201 of costs in the same manner and pursuant to in accordance with
202 the same procedures as are established for recovery and
203 reimbursement of sums otherwise owed to or expended from the
204 fund.
205 (n)(o) Payment of amounts payable under any service
206 contract entered into by the department pursuant to s. 376.3075,
207 subject to annual appropriation by the Legislature.
208 (o)(p) Petroleum remediation pursuant to this section s.
209 376.30711 throughout a state fiscal year. The department shall
210 establish a process to uniformly encumber appropriated funds
211 throughout a state fiscal year and shall allow for emergencies
212 and imminent threats to water resources, human health and the
213 environment, and the public health, safety, and welfare, as
214 provided in paragraph (5)(a). This paragraph does not apply to
215 appropriations associated with the free product recovery
216 initiative provided in of paragraph (5)(c) or the preapproved
217 advanced cleanup program provided in of s. 376.30713.
218 (p)(q) Enforcement of this section and ss. 376.30-376.317
219 by the Fish and Wildlife Conservation Commission. The department
220 shall disburse moneys to the commission for such purpose.
221
222 The Inland Protection Trust Fund may only be used to fund the
223 activities in ss. 376.30-376.317 except ss. 376.3078 and
224 376.3079. Amounts on deposit in the Inland Protection Trust fund
225 in each fiscal year shall first be applied or allocated for the
226 payment of amounts payable by the department pursuant to
227 paragraph (n) (o) under a service contract entered into by the
228 department pursuant to s. 376.3075 and appropriated in each year
229 by the Legislature before prior to making or providing for other
230 disbursements from the fund. Nothing in This subsection does not
231 shall authorize the use of the Inland Protection Trust fund for
232 cleanup of contamination caused primarily by a discharge of
233 solvents as defined in s. 206.9925(6), or polychlorinated
234 biphenyls when their presence causes them to be hazardous
235 wastes, except solvent contamination which is the result of
236 chemical or physical breakdown of petroleum products and is
237 otherwise eligible. Facilities used primarily for the storage of
238 motor or diesel fuels as defined in ss. 206.01 and 206.86 are
239 shall be presumed not to be excluded from eligibility pursuant
240 to this section.
241 (5) SITE SELECTION AND CLEANUP CRITERIA.—
242 (a) The department shall adopt rules to establish
243 priorities based upon a scoring system for state-conducted
244 cleanup at petroleum contamination sites based upon factors that
245 include, but need not be limited to:
246 1. The degree to which the public human health, safety, or
247 welfare may be affected by exposure to the contamination;
248 2. The size of the population or area affected by the
249 contamination;
250 3. The present and future uses of the affected aquifer or
251 surface waters, with particular consideration as to the
252 probability that the contamination is substantially affecting,
253 or will migrate to and substantially affect, a known public or
254 private source of potable water; and
255 4. The effect of the contamination on water resources and
256 the environment.
257
258 Moneys in the fund shall then be obligated for activities
259 described in paragraphs (4)(a)-(e) at individual sites pursuant
260 to in accordance with such established criteria. However,
261 nothing in this paragraph does not shall be construed to
262 restrict the department from modifying the priority status of a
263 rehabilitation site where conditions warrant, taking into
264 consideration the actual distance between the contamination site
265 and groundwater or surface water receptors or other factors that
266 affect the risk of exposure to petroleum products’ chemicals of
267 concern. The department may use the effective date of a
268 department final order granting eligibility pursuant to
269 subsections (10) (9) and (13) and ss. 376.305(6) and 376.3072 to
270 establish a prioritization system within a particular priority
271 scoring range.
272 (b) It is the intent of the Legislature to protect the
273 health of all people under actual circumstances of exposure. The
274 secretary shall establish criteria by rule for the purpose of
275 determining, on a site-specific basis, the rehabilitation
276 program tasks that comprise a site rehabilitation program and
277 the level at which a rehabilitation program task and a site
278 rehabilitation program are may be deemed completed. In
279 establishing the rule, the department shall incorporate, to the
280 maximum extent feasible, risk-based corrective action principles
281 to achieve protection of water resources, human health and
282 safety and the environment, and the public health, safety, and
283 welfare in a cost-effective manner as provided in this
284 subsection. Criteria for determining what constitutes a
285 rehabilitation program task or completion of site rehabilitation
286 program tasks and site rehabilitation programs shall be based
287 upon the factors set forth in paragraph (a) and the following
288 additional factors:
289 1. The current exposure and potential risk of exposure to
290 humans and the environment including multiple pathways of
291 exposure.
292 2. The appropriate point of compliance with cleanup target
293 levels for petroleum products’ chemicals of concern. The point
294 of compliance shall be at the source of the petroleum
295 contamination. However, the department may is authorized to
296 temporarily move the point of compliance to the boundary of the
297 property, or to the edge of the plume when the plume is within
298 the property boundary, while cleanup, including cleanup through
299 natural attenuation processes in conjunction with appropriate
300 monitoring, is proceeding. The department may also is
301 authorized, pursuant to criteria provided for in this paragraph,
302 to temporarily extend the point of compliance beyond the
303 property boundary with appropriate monitoring, if such extension
304 is needed to facilitate natural attenuation or to address the
305 current conditions of the plume and if water resources, provided
306 human health, public safety, and the environment, and the public
307 health, safety, and welfare are adequately protected. Temporary
308 extension of the point of compliance beyond the property
309 boundary, as provided in this subparagraph, must shall include
310 notice to local governments and owners of any property into
311 which the point of compliance is allowed to extend.
312 3. The appropriate site-specific cleanup goal. The site
313 specific cleanup goal shall be that all petroleum contamination
314 sites ultimately achieve the applicable cleanup target levels
315 provided in this paragraph. However, the department may is
316 authorized to allow concentrations of the petroleum products’
317 chemicals of concern to temporarily exceed the applicable
318 cleanup target levels while cleanup, including cleanup through
319 natural attenuation processes in conjunction with appropriate
320 monitoring, is proceeding, if water resources provided human
321 health, public safety, and the environment, and the public
322 health, welfare, and safety are adequately protected.
323 4. The appropriateness of using institutional or
324 engineering controls. Site rehabilitation programs may include
325 the use of institutional or engineering controls to eliminate
326 the potential exposure to petroleum products’ chemicals of
327 concern to humans or the environment. Use of such controls must
328 have prior department approval be preapproved by the department,
329 and may institutional controls shall not be acquired with moneys
330 funds from the Inland Protection Trust fund. When institutional
331 or engineering controls are implemented to control exposure, the
332 removal of such controls must have prior department approval and
333 must be accompanied immediately by the resumption of active
334 cleanup, or other approved controls, unless cleanup target
335 levels pursuant to this paragraph have been achieved.
336 5. The additive effects of the petroleum products’
337 chemicals of concern. The synergistic effects of petroleum
338 products’ chemicals of concern must shall also be considered
339 when the scientific data becomes available.
340 6. Individual site characteristics that must which shall
341 include, but not be limited to, the current and projected use of
342 the affected groundwater in the vicinity of the site, current
343 and projected land uses of the area affected by the
344 contamination, the exposed population, the degree and extent of
345 contamination, the rate of contaminant migration, the apparent
346 or potential rate of contaminant degradation through natural
347 attenuation processes, the location of the plume, and the
348 potential for further migration in relation to site property
349 boundaries.
350 7. Applicable state water quality standards.
351 a. Cleanup target levels for petroleum products’ chemicals
352 of concern found in groundwater shall be the applicable state
353 water quality standards. Where such standards do not exist, the
354 cleanup target levels for groundwater shall be based on the
355 minimum criteria specified in department rule. The department
356 shall consider the following, as appropriate, in establishing
357 the applicable minimum criteria: calculations using a lifetime
358 cancer risk level of 1.0E-6; a hazard index of 1 or less; the
359 best achievable detection limit; the naturally occurring
360 background concentration; or nuisance, organoleptic, and
361 aesthetic considerations.
362 b. Where surface waters are exposed to petroleum
363 contaminated groundwater, the cleanup target levels for the
364 petroleum products’ chemicals of concern shall be based on the
365 surface water standards as established by department rule. The
366 point of measuring compliance with the surface water standards
367 shall be in the groundwater immediately adjacent to the surface
368 water body.
369 8. Whether deviation from state water quality standards or
370 from established criteria is appropriate. The department may
371 issue a “No Further Action Order” based upon the degree to which
372 the desired cleanup target level is achievable and can be
373 reasonably and cost-effectively implemented within available
374 technologies or engineering and institutional control
375 strategies. Where a state water quality standard is applicable,
376 a deviation may not result in the application of cleanup target
377 levels more stringent than the said standard. In determining
378 whether it is appropriate to establish alternate cleanup target
379 levels at a site, the department may consider the effectiveness
380 of source removal that has been completed at the site and the
381 practical likelihood of: the use of low yield or poor quality
382 groundwater; the use of groundwater near marine surface water
383 bodies; the current and projected use of the affected
384 groundwater in the vicinity of the site; or the use of
385 groundwater in the immediate vicinity of the storage tank area,
386 where it has been demonstrated that the groundwater
387 contamination is not migrating away from such localized source,
388 if water resources; provided human health, public safety, and
389 the environment, and the public health, safety, and welfare are
390 adequately protected.
391 9. Appropriate cleanup target levels for soils.
392 a. In establishing soil cleanup target levels for human
393 exposure to petroleum products’ chemicals of concern found in
394 soils from the land surface to 2 feet below land surface, the
395 department shall consider the following, as appropriate:
396 calculations using a lifetime cancer risk level of 1.0E-6; a
397 hazard index of 1 or less; the best achievable detection limit;
398 or the naturally occurring background concentration.
399 b. Leachability-based soil target levels shall be based on
400 protection of the groundwater cleanup target levels or the
401 alternate cleanup target levels for groundwater established
402 pursuant to this paragraph, as appropriate. Source removal and
403 other cost-effective alternatives that are technologically
404 feasible shall be considered in achieving the leachability soil
405 target levels established by the department. The leachability
406 goals do not apply shall not be applicable if the department
407 determines, based upon individual site characteristics, that
408 petroleum products’ chemicals of concern will not leach into the
409 groundwater at levels which pose a threat to water resources,
410 human health and safety or the environment, or the public
411 health, safety, or welfare.
412
413 However, nothing in This paragraph does not shall be construed
414 to restrict the department from temporarily postponing
415 completion of any site rehabilitation program for which funds
416 are being expended whenever such postponement is deemed
417 necessary in order to make funds available for rehabilitation of
418 a contamination site with a higher priority status.
419 (c) The department shall require source removal, if
420 warranted and cost-effective, at each site eligible for
421 restoration funding from the Inland Protection Trust fund.
422 1. Funding for free product recovery may be provided in
423 advance of the order established by the priority ranking system
424 under paragraph (a) for site cleanup activities. However, a
425 separate prioritization for free product recovery shall be
426 established consistent with paragraph (a). No more than $5
427 million shall be encumbered from the Inland Protection Trust
428 fund in any fiscal year for free product recovery conducted in
429 advance of the priority order under paragraph (a) established
430 for site cleanup activities.
431 2. Once free product removal and other source removal
432 identified in this paragraph are completed at a site, and
433 notwithstanding the order established by the priority ranking
434 system under paragraph (a) for site cleanup activities, the
435 department may reevaluate the site to determine the degree of
436 active cleanup needed to continue site rehabilitation. Further,
437 the department shall determine whether if the reevaluated site
438 qualifies for natural attenuation monitoring, long-term natural
439 attenuation monitoring, or no further action. If additional site
440 rehabilitation is necessary to reach no further action status,
441 the site rehabilitation shall be conducted in the order
442 established by the priority ranking system under paragraph (a).
443 The department shall use utilize natural attenuation monitoring
444 strategies and, when cost-effective, transition sites eligible
445 for restoration funding assistance to long-term natural
446 attenuation monitoring where the plume is shrinking or stable
447 and confined to the source property boundaries and the petroleum
448 products’ chemicals of concern meet the natural attenuation
449 default concentrations, as defined by department rule. If the
450 plume migrates beyond the source property boundaries, natural
451 attenuation monitoring may be conducted pursuant to in
452 accordance with department rule, or if the site no longer
453 qualifies for natural attenuation monitoring, active remediation
454 may be resumed. For long-term natural attenuation monitoring, if
455 the petroleum products’ chemicals of concern increase or are not
456 significantly reduced after 42 months of monitoring, or if the
457 plume migrates beyond the property boundaries, active
458 remediation shall be resumed as necessary. For sites undergoing
459 active remediation, the department shall evaluate template the
460 cost of natural attenuation monitoring pursuant to s. 376.30711
461 to ensure that site mobilizations are performed in a cost
462 effective manner. Sites that are not eligible for state
463 restoration funding may transition to long-term natural
464 attenuation monitoring using the criteria in this subparagraph.
465 Nothing in This subparagraph does not preclude precludes a site
466 from pursuing a “No Further Action” order with conditions.
467 3. The department shall evaluate whether higher natural
468 attenuation default concentrations for natural attenuation
469 monitoring or long-term natural attenuation monitoring are cost
470 effective and would adequately protect water resources, public
471 health and the environment, and the public health, safety, and
472 welfare. The department shall also evaluate site-specific
473 characteristics that would allow for higher natural attenuation
474 or long-term natural attenuation concentration levels.
475 4. A local government may not deny a building permit based
476 solely on the presence of petroleum contamination for any
477 construction, repairs, or renovations performed in conjunction
478 with tank upgrade activities to an existing retail fuel facility
479 if the facility was fully operational before the building permit
480 was requested and if the construction, repair, or renovation is
481 performed by a licensed contractor. All building permits and any
482 construction, repairs, or renovations performed in conjunction
483 with such permits must comply with the applicable provisions of
484 chapters 489 and 553.
485 (6) CONTRACTING AND CONTRACTOR SELECTION REQUIREMENTS.—
486 (a) Site rehabilitation work on sites that are eligible for
487 state-funded cleanup from the fund pursuant to this section and
488 ss. 376.305(6), 376.3072, and 376.3073 may be funded only
489 pursuant to this section. A facility operator shall abate the
490 source of discharge for a new release that occurred after March
491 29, 1995. If free product is present, the operator shall notify
492 the department, and the department may direct the removal of the
493 free product. The department shall grant approval to continue
494 site rehabilitation pursuant to this section.
495 (b) When contracting for site rehabilitation activities
496 performed under the Petroleum Restoration Program, the
497 department shall comply with competitive procurement
498 requirements provided in chapter 287 or rules adopted under this
499 section or s. 287.0595.
500 (c) Each contractor performing site assessment and
501 remediation activities for state-funded sites under this section
502 shall certify to the department that the contractor meets all
503 certification and license requirements imposed by law. Each
504 contractor shall certify to the department that the contractor
505 meets the following minimum qualifications:
506 1. Complies with applicable Occupational Safety and Health
507 Administration regulations.
508 2. Maintains workers’ compensation insurance for employees
509 as required by the Florida Workers’ Compensation Law.
510 3. Maintains comprehensive general liability and
511 comprehensive automobile liability insurance with minimum limits
512 of at least $1 million per occurrence and $1 million annual
513 aggregate to pay claims for damage for personal injury,
514 including accidental death, as well as claims for property
515 damage that may arise from performance of work under the
516 program, which insurance designates the state as an additional
517 insured party.
518 4. Maintains professional liability insurance of at least
519 $1 million per occurrence and $1 million annual aggregate.
520 5. Has the capacity to perform or directly supervise the
521 majority of the rehabilitation work at a site pursuant to s.
522 489.113(9).
523 (d) The department rules implementing this section must
524 specify that only qualified vendors may submit responses on a
525 competitive solicitation. The department rules must also include
526 procedures for the rejection of vendors not meeting the minimum
527 qualifications on the opening of a competitive solicitation and
528 requirements for a vendor to maintain its qualifications in
529 order to enter contracts or perform rehabilitation work.
530 (e) A contractor that performs services pursuant to this
531 subsection may file invoices for payment with the department for
532 the services described in the approved contract. The invoices
533 for payment must be submitted to the department on forms
534 provided by the department, together with evidence documenting
535 that activities were conducted or completed pursuant to the
536 approved contract. If there are sufficient unencumbered funds
537 available in the fund which have been appropriated for
538 expenditure by the Legislature and if all of the terms of the
539 approved contract have been met, invoices for payment must be
540 paid pursuant to s. 215.422. After a contractor has submitted
541 its invoices to the department, and before payment is made, the
542 contractor may assign its right to payment to another person
543 without recourse of the assignee or assignor to the state. In
544 such cases, the assignee must be paid pursuant to s. 215.422.
545 Prior notice of the assignment and assignment information must
546 be made to the department and must be signed and notarized by
547 the assigning party.
548 (f) The contractor shall submit an invoice to the
549 department within 30 days after the date of the department’s
550 written acceptance of each interim deliverable or written
551 approval of the final deliverable specified in the approved
552 contract.
553 (g) The department shall make payments based on the terms
554 of an approved contract for site rehabilitation work. The
555 department may, based on its experience and the past performance
556 and concerns regarding a contractor, retain up to 25 percent of
557 the contracted amount or use performance bonds to ensure
558 performance. The amount of retainage and the amount of
559 performance bonds, as well as the terms and conditions for such,
560 must be included in the approved contract.
561 (h) The contractor or the person to which the contractor
562 has assigned its right to payment pursuant to paragraph (e)
563 shall make prompt payment to subcontractors and suppliers for
564 their costs associated with an approved contract pursuant to s.
565 287.0585(1).
566 (i) The exemption under s. 287.0585(2) does not apply to
567 payments associated with an approved contract.
568 (j) The department may withhold payment if the validity or
569 accuracy of a contractor’s invoices or supporting documents is
570 in question.
571 (k) This section does not authorize payment to a person for
572 costs of contaminated soil treatment or disposal that does not
573 meet the applicable rules of this state for such treatment or
574 disposal, including all general permitting, state air emission
575 standards, monitoring, sampling, and reporting rules more
576 specifically described by department rules.
577 (l) The department shall terminate or suspend a
578 contractor’s eligibility for participation in the program if the
579 contractor fails to perform its contractual duties for site
580 rehabilitation program tasks.
581 (m) A site owner or operator, or his or her designee, may
582 not receive any remuneration, in cash or in kind, directly or
583 indirectly, from a rehabilitation contractor performing site
584 cleanup activities pursuant to this section.
585 (7)(6) FUNDING.—The Inland Protection Trust Fund shall be
586 funded as follows:
587 (a) All excise taxes levied, collected, and credited to the
588 fund in accordance with the provisions of ss. 206.9935(3) and
589 206.9945(1)(c).
590 (b) All penalties, judgments, recoveries, reimbursements,
591 and other fees and charges credited to the fund pursuant to in
592 accordance with the provisions of subsection (3).
593 (8)(7) DEPARTMENTAL DUTY TO SEEK RECOVERY AND
594 REIMBURSEMENT.—
595 (a) Except as provided in subsection (10) (9) and as
596 otherwise provided by law, the department shall recover to the
597 use of the fund from a person or persons at any time causing or
598 having caused the discharge or from the Federal Government,
599 jointly and severally, all sums owed or expended from the fund,
600 pursuant to s. 376.308, except that the department may decline
601 to pursue such recovery if it finds the amount involved too
602 small or the likelihood of recovery too uncertain. Sums
603 recovered as a result of damage due to a discharge related to
604 the storage of petroleum or petroleum products or other similar
605 disaster shall be apportioned between the fund and the General
606 Revenue Fund so as to repay the full costs to the General
607 Revenue Fund of any sums disbursed therefrom as a result of such
608 disaster. A Any request for reimbursement to the fund for such
609 costs, if not paid within 30 days after of demand, shall be
610 turned over to the department for collection.
611 (b) Except as provided in subsection (10) (9) and as
612 otherwise provided by law, it is the duty of the department in
613 administering the fund diligently to pursue the reimbursement to
614 the fund of any sum expended from the fund for cleanup and
615 abatement pursuant to in accordance with the provisions of this
616 section or s. 376.3073, unless the department finds the amount
617 involved too small or the likelihood of recovery too uncertain.
618 For the purposes of s. 95.11, the limitation period within which
619 to institute an action to recover such sums shall begin commence
620 on the last date on which any such sums were expended, and not
621 the date on which that the discharge occurred. The department’s
622 claim for recovery of payments or overpayments from the fund
623 must be based on the law in existence at the time of the payment
624 or overpayment.
625 (c) If the department initiates an enforcement action to
626 clean up a contaminated site and determines that the responsible
627 party cannot is financially unable to undertake complete
628 restoration of the contaminated site, that the current property
629 owner was not responsible for the discharge when the
630 contamination first occurred, or that the state’s interest can
631 best be served by conducting cleanup, the department may enter
632 into an agreement with the responsible party or property owner
633 whereby the department agrees to conduct site rehabilitation and
634 the responsible party or property owner agrees to pay for the
635 portion of the cleanup costs that are within such party’s or
636 owner’s financial capabilities as determined by the department,
637 taking into consideration the party’s or owner’s net worth and
638 the economic impact on the party or owner.
639 (9)(8) INVESTMENTS; INTEREST.—Moneys in the fund which are
640 not needed currently to meet the obligations of the department
641 in the exercise of its responsibilities under this section and
642 s. 376.3073 shall be deposited with the Chief Financial Officer
643 to the credit of the fund and may be invested in such manner as
644 is provided for by law statute. The interest received on such
645 investment shall be credited to the fund. Any provisions of law
646 to the contrary notwithstanding, such interest may be freely
647 transferred between the this trust fund and the Water Quality
648 Assurance Trust Fund, in the discretion of the department.
649 (10)(9) EARLY DETECTION INCENTIVE PROGRAM.—To encourage
650 early detection, reporting, and cleanup of contamination from
651 leaking petroleum storage systems, the department shall, within
652 the guidelines established in this subsection, conduct an
653 incentive program that provides which shall provide for a 30
654 month grace period ending on December 31, 1988. Pursuant
655 thereto:
656 (a) The department shall establish reasonable requirements
657 for the written reporting of petroleum contamination incidents
658 and shall distribute forms to registrants under s. 376.303(1)(b)
659 and to other interested parties upon request to be used for such
660 purpose. Until such forms are available for distribution, the
661 department shall take reports of such incidents, however made,
662 but shall notify any person making such a report that a complete
663 written report of the incident will be required by the
664 department at a later time, the form for which will be provided
665 by the department.
666 (b) When reporting forms become available for distribution,
667 all sites involving incidents of contamination from petroleum
668 storage systems initially reported to the department at any time
669 from midnight on June 30, 1986, to midnight on December 31,
670 1988, shall be qualified sites if, provided that such a complete
671 written report is filed with respect thereto within a reasonable
672 time. Subject to the delays which may occur as a result of the
673 prioritization of sites under paragraph (5)(a) for any qualified
674 site, costs for activities described in paragraphs (4)(a)-(e)
675 shall be absorbed at the expense of the fund, without recourse
676 to reimbursement or recovery, with the following exceptions:
677 1. The provisions of This subsection does shall not apply
678 to a any site where the department has been denied site access
679 to implement the provisions of this section.
680 2. The provisions of This subsection does shall not be
681 construed to authorize or require reimbursement from the fund
682 for costs expended before prior to the beginning of the grace
683 period, except as provided in subsection (12).
684 3.a. Upon discovery by the department that the owner or
685 operator of a petroleum storage system has been grossly
686 negligent in the maintenance of such petroleum storage system;
687 has, with willful intent to conceal the existence of a serious
688 discharge, falsified inventory or reconciliation records
689 maintained with respect to the site at which such system is
690 located; or has intentionally damaged such petroleum storage
691 system, the site at which such system is located shall be
692 ineligible for participation in the incentive program and the
693 owner shall be liable for all costs due to discharges from
694 petroleum storage systems at that site, any other provisions of
695 chapter 86-159, Laws of Florida, to the contrary
696 notwithstanding. For the purposes of this paragraph, willful
697 failure to maintain inventory and reconciliation records,
698 willful failure to make monthly monitoring system checks where
699 such systems are in place, and failure to meet monitoring and
700 retrofitting requirements within the schedules established under
701 chapter 62-761, Florida Administrative Code, or violation of
702 similar rules adopted by the department under this chapter,
703 constitutes shall be construed to be gross negligence in the
704 maintenance of a petroleum storage system.
705 b. The department shall redetermine the eligibility of
706 petroleum storage systems for which a timely Early Detection
707 Incentive Program EDI application was filed, but which were
708 deemed ineligible by the department, under the following
709 conditions:
710 (I) The owner or operator, on or before March 31, 1991,
711 shall submit, in writing, notification that the storage system
712 is now in compliance with department rules adopted pursuant to
713 s. 376.303, and which requests the department to reevaluate the
714 storage system eligibility; and
715 (II) The department verifies the storage system compliance
716 based on a compliance inspection.
717
718 Provided, however, that A site may be determined eligible by the
719 department for good cause shown, including, but not limited to,
720 demonstration by the owner or operator that to achieve
721 compliance would cause an increase in the potential for the
722 spread of the contamination.
723 c. Redetermination of eligibility pursuant to sub
724 subparagraph b. shall not be available to:
725 (I) Petroleum storage systems owned or operated by the
726 Federal Government.
727 (II) Facilities that denied site access to the department.
728 (III) Facilities where a discharge was intentionally
729 concealed.
730 (IV) Facilities that were denied eligibility due to:
731 (A) Absence of contamination, unless any such facility
732 subsequently establishes that contamination did exist at that
733 facility on or before December 31, 1988.
734 (B) Contamination from substances that were not petroleum
735 or a petroleum product.
736 (C) Contamination that was not from a petroleum storage
737 system.
738 d. EDI Applicants who demonstrate compliance for a site
739 pursuant to sub-subparagraph b. are eligible for the Early
740 Detection Incentive Program and site rehabilitation funding
741 pursuant to subsections subsection (5) and (6) s. 376.30711.
742
743 If, in order to avoid prolonged delay, the department in its
744 discretion deems it necessary to expend sums from the fund to
745 cover ineligible sites or costs as set forth in this paragraph,
746 the department may do so and seek recovery and reimbursement
747 therefor in the same manner and pursuant to in accordance with
748 the same procedures as are established for recovery and
749 reimbursement of sums otherwise owed to or expended from the
750 fund.
751 (c) A No report of a discharge made to the department by a
752 any person pursuant to in accordance with this subsection, or
753 any rules adopted promulgated pursuant to this subsection may
754 not hereto, shall be used directly as evidence of liability for
755 such discharge in any civil or criminal trial arising out of the
756 discharge.
757 (d) The provisions of This subsection does shall not apply
758 to petroleum storage systems owned or operated by the Federal
759 Government.
760 (11)(10) VIOLATIONS; PENALTY.—A It is unlawful for any
761 person may not to:
762 (a) Falsify inventory or reconciliation records maintained
763 in compliance with chapters 62-761 and 62-762, Florida
764 Administrative Code, with willful intent to conceal the
765 existence of a serious leak; or
766 (b) Intentionally damage a petroleum storage system.
767
768 A Any person convicted of such a violation commits shall be
769 guilty of a felony of the third degree, punishable as provided
770 in s. 775.082, s. 775.083, or s. 775.084.
771 (12)(11) SITE CLEANUP.—
772 (a) Voluntary cleanup.—This section does not prohibit a
773 person from conducting site rehabilitation either through his or
774 her own personnel or through responsible response action
775 contractors or subcontractors when such person is not seeking
776 site rehabilitation funding from the fund. Such voluntary
777 cleanups must meet all applicable environmental standards.
778 (b) Low-scored site initiative.—Notwithstanding subsections
779 (5) and (6) s. 376.30711, a any site with a priority ranking
780 score of 29 points or less may voluntarily participate in the
781 low-scored site initiative regardless of, whether or not the
782 site is eligible for state restoration funding.
783 1. To participate in the low-scored site initiative, the
784 responsible party or property owner must affirmatively
785 demonstrate that the following conditions are met:
786 a. Upon reassessment pursuant to department rule, the site
787 retains a priority ranking score of 29 points or less.
788 b. No Excessively contaminated soil, as defined by
789 department rule, does not exist exists onsite as a result of a
790 release of petroleum products.
791 c. A minimum of 6 months of groundwater monitoring
792 indicates that the plume is shrinking or stable.
793 d. The release of petroleum products at the site does not
794 adversely affect adjacent surface waters, including their
795 effects on human health and the environment.
796 e. The area of groundwater containing the petroleum
797 products’ chemicals of concern is less than one-quarter acre and
798 is confined to the source property boundaries of the real
799 property on which the discharge originated.
800 f. Soils onsite that are subject to human exposure found
801 between land surface and 2 feet below land surface meet the soil
802 cleanup target levels established by department rule or human
803 exposure is limited by appropriate institutional or engineering
804 controls.
805 2. Upon affirmative demonstration of the conditions under
806 subparagraph 1., the department shall issue a determination of
807 “No Further Action.” Such determination acknowledges that
808 minimal contamination exists onsite and that such contamination
809 is not a threat to water resources, human health or the
810 environment, or the public health, safety, or welfare. If no
811 contamination is detected, the department may issue a site
812 rehabilitation completion order.
813 3. Sites that are eligible for state restoration funding
814 may receive payment of preapproved costs for the low-scored site
815 initiative as follows:
816 a. A responsible party or property owner may submit an
817 assessment plan designed to affirmatively demonstrate that the
818 site meets the conditions under subparagraph 1. Notwithstanding
819 the priority ranking score of the site, the department may
820 approve preapprove the cost of the assessment pursuant to s.
821 376.30711, including 6 months of groundwater monitoring, not to
822 exceed $30,000 for each site. The department may not pay the
823 costs associated with the establishment of institutional or
824 engineering controls.
825 b. The assessment work shall be completed no later than 6
826 months after the department issues its approval.
827 c. No more than $10 million for the low-scored site
828 initiative may be encumbered from the Inland Protection Trust
829 fund in any fiscal year. Funds shall be made available on a
830 first-come, first-served basis and shall be limited to 10 sites
831 in each fiscal year for each responsible party or property
832 owner.
833 d. Program deductibles, copayments, and the limited
834 contamination assessment report requirements under paragraph
835 (13)(c) do not apply to expenditures under this paragraph.
836 (12) REIMBURSEMENT FOR CLEANUP EXPENSES.—Except as provided
837 in s. 2(3), chapter 95-2, Laws of Florida, this subsection shall
838 not apply to any site rehabilitation program task initiated
839 after March 29, 1995. Effective August 1, 1996, no further site
840 rehabilitation work on sites eligible for state-funded cleanup
841 from the Inland Protection Trust Fund shall be eligible for
842 reimbursement pursuant to this subsection. The person
843 responsible for conducting site rehabilitation may seek
844 reimbursement for site rehabilitation program task work
845 conducted after March 28, 1995, in accordance with s. 2(2) and
846 (3), chapter 95-2, Laws of Florida, regardless of whether the
847 site rehabilitation program task is completed. A site
848 rehabilitation program task shall be considered to be initiated
849 when actual onsite work or engineering design, pursuant to
850 chapter 62-770, Florida Administrative Code, which is integral
851 to performing a site rehabilitation program task has begun and
852 shall not include contract negotiation and execution, site
853 research, or project planning. All reimbursement applications
854 pursuant to this subsection must be submitted to the department
855 by January 3, 1997. The department shall not accept any
856 applications for reimbursement or pay any claims on applications
857 for reimbursement received after that date; provided, however if
858 an application filed on or prior to January 3, 1997, was
859 returned by the department on the grounds of untimely filing, it
860 shall be refiled within 30 days after the effective date of this
861 act in order to be processed.
862 (a) Legislative findings.—The Legislature finds and
863 declares that rehabilitation of contamination sites should be
864 conducted in a manner and to a level of completion which will
865 protect the public health, safety, and welfare and will minimize
866 damage to the environment.
867 (b) Conditions.—
868 1. The owner, operator, or his or her designee of a site
869 which is eligible for restoration funding assistance in the EDI,
870 PLRIP, or ATRP programs shall be reimbursed from the Inland
871 Protection Trust Fund of allowable costs at reasonable rates
872 incurred on or after January 1, 1985, for completed program
873 tasks as identified in the department rule promulgated pursuant
874 to paragraph (5)(b), or uncompleted program tasks pursuant to
875 chapter 95-2, Laws of Florida, subject to the conditions in this
876 section. It is unlawful for a site owner or operator, or his or
877 her designee, to receive any remuneration, in cash or in kind,
878 directly or indirectly from the rehabilitation contractor.
879 2. Nothing in this subsection shall be construed to
880 authorize reimbursement to any person for costs of contaminated
881 soil treatment or disposal that does not meet the applicable
882 rules of this state for such treatment or disposal, including
883 all general permitting, state air emission standards,
884 monitoring, sampling, and reporting rules more specifically
885 described in department rules.
886 (c) Legislative intent.—Due to the value of the potable
887 water of this state, it is the intent of the Legislature that
888 the department initiate and facilitate as many cleanups as
889 possible utilizing the resources of the state, local
890 governments, and the private sector, recognizing that source
891 removal, wherever it is technologically feasible and cost
892 effective, shall be considered the primary initial response to
893 protect public health, safety, and the environment.
894 (d) Amount of reimbursement.—The department shall reimburse
895 actual and reasonable costs for site rehabilitation. The
896 department shall not reimburse interest on the amount of
897 reimbursable costs for any reimbursement application. However,
898 nothing herein shall affect the department’s authority to pay
899 interest authorized under prior law.
900 (e) Records.—The person responsible for conducting site
901 rehabilitation, or his or her agent, shall keep and preserve
902 suitable records as follows:
903 1. Hydrological and other site investigations and
904 assessments; site rehabilitation plans; contracts and contract
905 negotiations; and accounts, invoices, sales tickets, or other
906 payment records from purchases, sales, leases, or other
907 transactions involving costs actually incurred related to site
908 rehabilitation. Such records shall be made available upon
909 request to agents and employees of the department during regular
910 business hours and at other times upon written request of the
911 department.
912 2. In addition, the department may from time to time
913 request submission of such site-specific information as it may
914 require, unless a waiver or variance from such department
915 request is granted pursuant to paragraph (k).
916 3. All records of costs actually incurred for cleanup shall
917 be certified by affidavit to the department as being true and
918 correct.
919 (f) Application for reimbursement.—Any eligible person who
920 performs a site rehabilitation program or performs site
921 rehabilitation program tasks such as preparation of site
922 rehabilitation plans or assessments; product recovery; cleanup
923 of groundwater or inland surface water; soil treatment or
924 removal; or any other tasks identified by department rule
925 developed pursuant to subsection (5), may apply for
926 reimbursement. Such applications for reimbursement must be
927 submitted to the department on forms provided by the department,
928 together with evidence documenting that site rehabilitation
929 program tasks were conducted or completed in accordance with
930 department rule developed pursuant to subsection (5), and other
931 such records or information as the department requires. The
932 reimbursement application and supporting documentation shall be
933 examined by a certified public accountant in accordance with
934 standards established by the American Institute of Certified
935 Public Accountants. A copy of the accountant’s report shall be
936 submitted with the reimbursement application. Applications for
937 reimbursement shall not be approved for site rehabilitation
938 program tasks which have not been completed, except for the task
939 of remedial action and except for uncompleted program tasks
940 pursuant to chapter 95-2, Laws of Florida, and this subsection.
941 Applications for remedial action may be submitted semiannually
942 at the discretion of the person responsible for cleanup. After
943 an applicant has filed an application with the department and
944 before payment is made, the applicant may assign the right to
945 payment to any other person, without recourse of the assignee or
946 assignor to the state, without affecting the order in which
947 payment is made. Information necessary to process the
948 application shall be requested from and provided by the
949 assigning applicant. Proper notice of the assignment and
950 assignment information shall be made to the department which
951 notice shall be signed and notarized by the assigning applicant.
952 (g) Review.—
953 1. Provided there are sufficient unencumbered funds
954 available in the Inland Protection Trust Fund, or to the extent
955 proceeds of debt obligations are available for the payment of
956 existing reimbursement obligations pursuant to s. 376.3075, the
957 department shall have 60 days to determine if the applicant has
958 provided sufficient information for processing the application
959 and shall request submission of any additional information that
960 the department may require within such 60-day period. If the
961 applicant believes any request for additional information is not
962 authorized, the applicant may request a hearing pursuant to ss.
963 120.569 and 120.57. Once the department requests additional
964 information, the department may request only that information
965 needed to clarify such additional information or to answer new
966 questions raised by or directly related to such additional
967 information.
968 2. The department shall deny or approve the application for
969 reimbursement within 90 days after receipt of the last item of
970 timely requested additional material, or, if no additional
971 material is requested, within 90 days of the close of the 60-day
972 period described in subparagraph 1., unless the total review
973 period is otherwise extended by written mutual agreement of the
974 applicant and the department.
975 3. Final disposition of an application shall be provided to
976 the applicant in writing, accompanied by a written explanation
977 setting forth in detail the reason or reasons for the approval
978 or denial. If the department fails to make a determination on an
979 application within the time provided in subparagraph 2., or
980 denies an application, or if a dispute otherwise arises with
981 regard to reimbursement, the applicant may request a hearing
982 pursuant to ss. 120.569 and 120.57.
983 (h) Reimbursement.—Upon approval of an application for
984 reimbursement, reimbursement for reasonable expenditures of a
985 site rehabilitation program or site rehabilitation program tasks
986 documented therein shall be made in the order in which the
987 department receives completed applications. Effective January 1,
988 1997, all unpaid reimbursement applications are subject to
989 payment on the following terms: The department shall develop a
990 schedule of the anticipated dates of reimbursement of
991 applications submitted to the department pursuant to this
992 subsection. The schedule shall specify the projected date of
993 payment based on equal monthly payments and projected annual
994 revenue of $100 million. Based on the schedule, the department
995 shall notify all reimbursement applicants of the projected date
996 of payment of their applications. The department shall direct
997 the Inland Protection Financing Corporation to pay applicants
998 the present value of their applications as soon as practicable
999 after approval by the department, subject to the availability of
1000 funds within the Inland Protection Financing Corporation. The
1001 present value of an application shall be based on the date on
1002 which the department anticipates the Inland Protection Financing
1003 Corporation will settle the reimbursement application and the
1004 schedule’s projected date of payment and shall use 3.5 percent
1005 as the annual discount rate. The determination of the amount of
1006 the claim and the projected date of payment shall be subject to
1007 s. 120.57.
1008 (i) Liberal construction.—With respect to site
1009 rehabilitation initiated prior to July 1, 1986, the provisions
1010 of this subsection shall be given such liberal construction by
1011 the department as will accomplish the purposes set forth in this
1012 subsection. With regard to the keeping of particular records or
1013 the giving of certain notice, the department may accept as
1014 compliance action by a person which meets the intent of the
1015 requirements set forth in this subsection.
1016 (j) Reimbursement-review contracts.—The department may
1017 contract with entities capable of processing or assisting in the
1018 review of reimbursement applications. Any purchase of such
1019 services shall not be subject to chapter 287.
1020 (k) Audits.—
1021 1. The department is authorized to perform financial and
1022 technical audits in order to certify site restoration costs and
1023 ensure compliance with this chapter. The department shall seek
1024 recovery of any overpayments based on the findings of these
1025 audits. The department must commence any audit within 5 years
1026 after the date of reimbursement, except in cases where the
1027 department alleges specific facts indicating fraud.
1028 2. Upon determination by the department that any portion of
1029 costs which have been reimbursed are disallowed, the department
1030 shall give written notice to the applicant setting forth with
1031 specificity the allegations of fact which justify the
1032 department’s proposed action and ordering repayment of
1033 disallowed costs within 60 days of notification of the
1034 applicant.
1035 3. In the event the applicant does not make payment to the
1036 department within 60 days of receipt of such notice, the
1037 department shall seek recovery in a court of competent
1038 jurisdiction to recover reimbursement overpayments made to the
1039 person responsible for conducting site rehabilitation, unless
1040 the department finds the amount involved too small or the
1041 likelihood of recovery too uncertain.
1042 4. In addition to the amount of any overpayment, the
1043 applicant shall be liable to the department for interest of 1
1044 percent per month or the prime rate, whichever is less, on the
1045 amount of overpayment, from the date of overpayment by the
1046 department until the applicant satisfies the department’s
1047 request for repayment pursuant to this paragraph. The
1048 calculation of interest shall be tolled during the pendency of
1049 any litigation.
1050 5. Financial and technical audits frequently are conducted
1051 under this section many years after the site rehabilitation
1052 activities were performed and the costs examined in the course
1053 of the audit were incurred by the person responsible for site
1054 rehabilitation. During the intervening span of years, the
1055 department’s rule requirements and its related guidance and
1056 other nonrule policy directives may have changed significantly.
1057 The Legislature finds that it may be appropriate for the
1058 department to provide relief to persons subject to such
1059 requirements in financial and technical audits conducted
1060 pursuant to this section.
1061 a. The department is authorized to grant variances and
1062 waivers from the documentation requirements of subparagraph
1063 (e)2. and from the requirements of rules applicable in technical
1064 and financial audits conducted under this section. Variances and
1065 waivers shall be granted when the person responsible for site
1066 rehabilitation demonstrates to the department that application
1067 of a financial or technical auditing requirement would create a
1068 substantial hardship or would violate principles of fairness.
1069 For purposes of this subsection, “substantial hardship” means a
1070 demonstrated economic, technological, legal, or other type of
1071 hardship to the person requesting the variance or waiver. For
1072 purposes of this subsection, “principles of fairness” are
1073 violated when the application of a requirement affects a
1074 particular person in a manner significantly different from the
1075 way it affects other similarly situated persons who are affected
1076 by the requirement or when the requirement is being applied
1077 retroactively without due notice to the affected parties.
1078 b. A person whose reimbursed costs are subject to a
1079 financial and technical audit under this section may file a
1080 written request to the department for grant of a variance or
1081 waiver. The request shall specify:
1082 (I) The requirement from which a variance or waiver is
1083 requested.
1084 (II) The type of action requested.
1085 (III) The specific facts which would justify a waiver or
1086 variance.
1087 (IV) The reason or reasons why the requested variance or
1088 waiver would serve the purposes of this section.
1089 c. Within 90 days after receipt of a written request for
1090 variance or waiver under this subsection, the department shall
1091 grant or deny the request. If the request is not granted or
1092 denied within 90 days of receipt, the request shall be deemed
1093 approved. An order granting or denying the request shall be in
1094 writing and shall contain a statement of the relevant facts and
1095 reasons supporting the department’s action. The department’s
1096 decision to grant or deny the petition shall be supported by
1097 competent substantial evidence and is subject to ss. 120.569 and
1098 120.57. Once adopted, model rules promulgated by the
1099 Administration Commission under s. 120.542 shall govern the
1100 processing of requests under this provision.
1101 6. The Chief Financial Officer may audit the records of
1102 persons who receive or who have received payments pursuant to
1103 this chapter in order to verify site restoration costs, ensure
1104 compliance with this chapter, and verify the accuracy and
1105 completeness of audits performed by the department pursuant to
1106 this paragraph. The Chief Financial Officer may contract with
1107 entities or persons to perform audits pursuant to this
1108 subparagraph. The Chief Financial Officer shall commence any
1109 audit within 1 year after the department’s completion of an
1110 audit conducted pursuant to this paragraph, except in cases
1111 where the department or the Chief Financial Officer alleges
1112 specific facts indicating fraud.
1113 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
1114 detection, reporting, and cleanup of contamination caused by
1115 discharges of petroleum or petroleum products, the department
1116 shall, within the guidelines established in this subsection,
1117 implement a cost-sharing cleanup program to provide
1118 rehabilitation funding assistance for all property contaminated
1119 by discharges of petroleum or petroleum products occurring
1120 before January 1, 1995, subject to a copayment provided for in a
1121 Petroleum Cleanup Participation Program preapproved site
1122 rehabilitation agreement. Eligibility is shall be subject to an
1123 annual appropriation from the Inland Protection Trust fund.
1124 Additionally, funding for eligible sites is shall be contingent
1125 upon annual appropriation in subsequent years. Such continued
1126 state funding is shall not be deemed an entitlement or a vested
1127 right under this subsection. Eligibility shall be determined in
1128 the program, shall be notwithstanding any other provision of
1129 law, consent order, order, judgment, or ordinance to the
1130 contrary.
1131 (a)1. The department shall accept any discharge reporting
1132 form received before prior to January 1, 1995, as an application
1133 for this program, and the facility owner or operator need not
1134 reapply.
1135 2. Owners or operators of property contaminated by
1136 petroleum or petroleum products from a petroleum storage system
1137 may apply for such program by filing a written report of the
1138 contamination incident, including evidence that such incident
1139 occurred before prior to January 1, 1995, with the department.
1140 Incidents of petroleum contamination discovered after December
1141 31, 1994, at sites which have not stored petroleum or petroleum
1142 products for consumption, use, or sale after such date shall be
1143 presumed to have occurred before prior to January 1, 1995. An
1144 operator’s filed report shall be deemed an application of the
1145 owner for all purposes. Sites reported to the department after
1146 December 31, 1998, are shall not be eligible for the this
1147 program.
1148 (b) Subject to annual appropriation from the Inland
1149 Protection Trust fund, sites meeting the criteria of this
1150 subsection are eligible for up to $400,000 of site
1151 rehabilitation funding assistance in priority order pursuant to
1152 subsections subsection (5) and (6) s. 376.30711. Sites meeting
1153 the criteria of this subsection for which a site rehabilitation
1154 completion order was issued before prior to June 1, 2008, do not
1155 qualify for the 2008 increase in site rehabilitation funding
1156 assistance and are bound by the pre-June 1, 2008, limits. Sites
1157 meeting the criteria of this subsection for which a site
1158 rehabilitation completion order was not issued before prior to
1159 June 1, 2008, regardless of whether or not they have previously
1160 transitioned to nonstate-funded cleanup status, may continue
1161 state-funded cleanup pursuant to this section s. 376.30711 until
1162 a site rehabilitation completion order is issued or the
1163 increased site rehabilitation funding assistance limit is
1164 reached, whichever occurs first. The department may not pay At
1165 no time shall expenses incurred beyond outside the scope of an
1166 approved contract preapproved site rehabilitation program under
1167 s. 376.30711 be reimbursable.
1168 (c) Upon notification by the department that rehabilitation
1169 funding assistance is available for the site pursuant to
1170 subsections subsection (5) and (6) s. 376.30711, the owner,
1171 operator, or person otherwise responsible for site
1172 rehabilitation shall provide the department with a limited
1173 contamination assessment report and shall enter into a Petroleum
1174 Cleanup Participation Program preapproved site rehabilitation
1175 agreement with the department and a contractor qualified under
1176 s. 376.30711(2)(b). The agreement must shall provide for a 25
1177 percent copayment by the owner, operator, or person otherwise
1178 responsible for conducting site rehabilitation. The owner,
1179 operator, or person otherwise responsible for conducting site
1180 rehabilitation shall adequately demonstrate the ability to meet
1181 the copayment obligation. The limited contamination assessment
1182 report and the copayment costs may be reduced or eliminated if
1183 the owner and all operators responsible for restoration under s.
1184 376.308 demonstrate that they cannot are financially unable to
1185 comply with the copayment and limited contamination assessment
1186 report requirements. The department shall take into
1187 consideration the owner’s and operator’s net worth in making the
1188 determination of financial ability. In the event the department
1189 and the owner, operator, or person otherwise responsible for
1190 site rehabilitation cannot are unable to complete negotiation of
1191 the cost-sharing agreement within 120 days after beginning
1192 commencing negotiations, the department shall terminate
1193 negotiations, and the site shall be deemed ineligible for state
1194 funding under this subsection and all liability protections
1195 provided for in this subsection shall be revoked.
1196 (d) A No report of a discharge made to the department by a
1197 any person pursuant to in accordance with this subsection, or
1198 any rules adopted pursuant to this subsection may not hereto,
1199 shall be used directly as evidence of liability for such
1200 discharge in any civil or criminal trial arising out of the
1201 discharge.
1202 (e) Nothing in This subsection does not shall be construed
1203 to preclude the department from pursuing penalties under in
1204 accordance with s. 403.141 for violations of any law or any
1205 rule, order, permit, registration, or certification adopted or
1206 issued by the department pursuant to its lawful authority.
1207 (f) Upon the filing of a discharge reporting form under
1208 paragraph (a), neither the department or nor any local
1209 government may not shall pursue any judicial or enforcement
1210 action to compel rehabilitation of the discharge. This paragraph
1211 does shall not prevent any such action with respect to
1212 discharges determined ineligible under this subsection or to
1213 sites for which rehabilitation funding assistance is available
1214 pursuant to subsections in accordance with subsection (5) and
1215 (6) s. 376.30711.
1216 (g) The following are shall be excluded from participation
1217 in the program:
1218 1. Sites at which the department has been denied reasonable
1219 site access to implement the provisions of this section.
1220 2. Sites that were active facilities when owned or operated
1221 by the Federal Government.
1222 3. Sites that are identified by the United States
1223 Environmental Protection Agency to be on, or which qualify for
1224 listing on, the National Priorities List under Superfund. This
1225 exception does not apply to those sites for which eligibility
1226 has been requested or granted as of the effective date of this
1227 act under the Early Detection Incentive Program established
1228 pursuant to s. 15, chapter 86-159, Laws of Florida.
1229 4. Sites for which The contamination is covered under the
1230 Early Detection Incentive Program, the Abandoned Tank
1231 Restoration Program, or the Petroleum Liability and Restoration
1232 Insurance Program, in which case site rehabilitation funding
1233 assistance shall continue under the respective program.
1234 (14) LEGISLATIVE APPROVAL AND AUTHORIZATION.—Before Prior
1235 to the department enters entering into a service contract with
1236 the Inland Protection Financing Corporation which includes
1237 payments by the department to support any existing or planned
1238 note, bond, certificate of indebtedness, or other obligation or
1239 evidence of indebtedness of the corporation pursuant to s.
1240 376.3075, the Legislature, by law, must specifically authorize
1241 the department to enter into such a contract. The corporation
1242 may issue bonds in an amount not to exceed $104 million, with a
1243 term up to 15 years, and annual payments not in excess of $10.4
1244 million. The department may enter into a service contract in
1245 conjunction with the issuance of such bonds which provides for
1246 annual payments for debt service payments or other amounts
1247 payable with respect to bonds, plus any administrative expenses
1248 of the corporation to finance the rehabilitation of petroleum
1249 contamination sites pursuant to ss. 376.30-376.317.
1250 Section 2. Section 376.30711, Florida Statutes, is
1251 repealed.
1252 Section 3. Section 376.30713, Florida Statutes, is amended
1253 to read:
1254 376.30713 Preapproved Advanced cleanup.—
1255 (1) In addition to the legislative findings provided in s.
1256 376.3071 s. 376.30711, the Legislature finds and declares:
1257 (a) That the inability to conduct site rehabilitation in
1258 advance of a site’s priority ranking pursuant to s.
1259 376.3071(5)(a) may substantially impede or prohibit property
1260 transactions or the proper completion of public works projects.
1261 (b) While the first priority of the state is to provide for
1262 protection of the water resources of the state, human health,
1263 and the environment, and the public health, safety, and welfare,
1264 the viability of commerce is of equal importance to the state.
1265 (c) It is in the public interest and of substantial
1266 economic benefit to the state to provide an opportunity for site
1267 rehabilitation to be conducted on a limited basis at
1268 contaminated sites, in advance of the site’s priority ranking,
1269 to facilitate property transactions or public works projects.
1270 (d) It is appropriate for a person who is persons
1271 responsible for site rehabilitation to share the costs
1272 associated with managing and conducting preapproved advanced
1273 cleanup, to facilitate the opportunity for preapproved advanced
1274 cleanup, and to mitigate the additional costs that will be
1275 incurred by the state in conducting site rehabilitation in
1276 advance of the site’s priority ranking. Such cost sharing will
1277 result in more contaminated sites being cleaned up and greater
1278 environmental benefits to the state. The provisions of This
1279 section is shall only be available only for sites eligible for
1280 restoration funding under EDI, ATRP, or PLRIP PLIRP. This
1281 section is available for discharges eligible for restoration
1282 funding under the petroleum cleanup participation program for
1283 the state’s cost share of site rehabilitation. Applications must
1284 shall include a cost-sharing commitment for this section in
1285 addition to the 25-percent-copayment requirement of the
1286 petroleum cleanup participation program. This section is not
1287 available for any discharge under a petroleum cleanup
1288 participation program where the 25-percent-copayment requirement
1289 of the petroleum cleanup participation program has been reduced
1290 or eliminated pursuant to s. 376.3071(13)(c).
1291 (2) The department may is authorized to approve an
1292 application for preapproved advanced cleanup at eligible sites,
1293 before prior to funding based on the site’s priority ranking
1294 established pursuant to s. 376.3071(5)(a), pursuant to in
1295 accordance with the provisions of this section. Only the
1296 facility owner or operator or the person otherwise responsible
1297 for site rehabilitation qualifies Persons who qualify as an
1298 applicant under the provisions of this section shall only
1299 include the facility owner or operator or the person otherwise
1300 responsible for site rehabilitation.
1301 (a) Preapproved Advanced cleanup applications may be
1302 submitted between May 1 and June 30 and between November 1 and
1303 December 31 of each fiscal year. Applications submitted between
1304 May 1 and June 30 shall be for the fiscal year beginning July 1.
1305 An application must shall consist of:
1306 1. A commitment to pay no less than 25 percent or more of
1307 the total cleanup cost deemed recoverable under the provisions
1308 of this section along with proof of the ability to pay the cost
1309 share. An applicant proposing that the department enter into a
1310 performance-based contract for the cleanup of at least 20 sites
1311 may use the following as its cost share commitment: a commitment
1312 to pay; a demonstrated cost savings to the department; or any
1313 combination of the two. For applications relying on a
1314 demonstration of a cost savings, the applicant, in conjunction
1315 with its proposed agency term contractor, shall establish and
1316 provide in its application the percentage of cost savings, in
1317 the aggregate, that is being provided to the department for
1318 cleanup of the sites under its application compared to the cost
1319 of cleanup of those same sites using the current rates provided
1320 to the department by that proposed agency term contractor. The
1321 department shall determine if the cost savings demonstration is
1322 acceptable, and such determination is not subject to chapter
1323 120.
1324 2. A nonrefundable review fee of $250 to cover the
1325 administrative costs associated with the department’s review of
1326 the application.
1327 3. A limited contamination assessment report.
1328 4. A proposed course of action.
1329
1330 The limited contamination assessment report must shall be
1331 sufficient to support the proposed course of action and to
1332 estimate the cost of the proposed course of action. Any Costs
1333 incurred related to conducting the limited contamination
1334 assessment report are not refundable from the Inland Protection
1335 Trust Fund. Site eligibility under this subsection, or any other
1336 provision of this section is, shall not constitute an
1337 entitlement to preapproved advanced cleanup or continued
1338 restoration funding. The applicant shall certify to the
1339 department that the applicant has the prerequisite authority to
1340 enter into an a preapproved advanced cleanup contract with the
1341 department. The This certification must shall be submitted with
1342 the application.
1343 (b) The department shall rank the applications based on the
1344 percentage of cost-sharing commitment proposed by the applicant,
1345 with the highest ranking given to the applicant who that
1346 proposes the highest percentage of cost sharing. If the
1347 department receives applications that propose identical cost
1348 sharing commitments and that which exceed the funds available to
1349 commit to all such proposals during the preapproved advanced
1350 cleanup application period, the department shall proceed to
1351 rerank those applicants. Those applicants submitting identical
1352 cost-sharing proposals that which exceed funding availability
1353 must shall be so notified by the department and shall be offered
1354 the opportunity to raise their individual cost-share
1355 commitments, in a period of time specified in the notice. At the
1356 close of the period, the department shall proceed to rerank the
1357 applications pursuant to in accordance with this paragraph.
1358 (3)(a) Based on the ranking established under paragraph
1359 (2)(b) and the funding limitations provided in subsection (4),
1360 the department shall begin commence negotiation with such
1361 applicants. If the department and the applicant agree on the
1362 course of action, the department may enter into a contract with
1363 the applicant. The department may is authorized to negotiate the
1364 terms and conditions of the contract.
1365 (b) Preapproved Advanced cleanup must shall be conducted
1366 pursuant to s. 376.3071(5)(b) and (6) and rules adopted under
1367 ss. 287.0595 and 376.3071 under the provisions of ss.
1368 376.3071(5)(b) and 376.30711. If the terms of the preapproved
1369 advanced cleanup contract are not fulfilled, the applicant
1370 forfeits any right to future payment for any site rehabilitation
1371 work conducted under the contract.
1372 (c) The department’s decision not to enter into an a
1373 preapproved advanced cleanup contract with the applicant is
1374 shall not be subject to the provisions of chapter 120. If the
1375 department cannot is not able to complete negotiation of the
1376 course of action and the terms of the contract within 60 days
1377 after beginning commencing negotiations, the department shall
1378 terminate negotiations with that applicant.
1379 (4) The department may is authorized to enter into
1380 contracts for a total of up to $15 million of preapproved
1381 advanced cleanup work in each fiscal year. However, a facility
1382 or an applicant that bundles multiple sites as specified in
1383 subparagraph (2)(a)1. may not be approved preapproved for more
1384 than $5 million of cleanup activity in each fiscal year. For the
1385 purposes of this section, the term “facility” includes shall
1386 include, but is not be limited to, multiple site facilities such
1387 as airports, port facilities, and terminal facilities even
1388 though such enterprises may be treated as separate facilities
1389 for other purposes under this chapter.
1390 (5) All funds collected by the department pursuant to this
1391 section shall be deposited into the Inland Protection Trust Fund
1392 to be used as provided in this section.
1393 Section 4. Subsections (4) and (30) of section 376.301,
1394 Florida Statutes, are amended to read:
1395 376.301 Definitions of terms used in ss. 376.30-376.317,
1396 376.70, and 376.75.—When used in ss. 376.30-376.317, 376.70, and
1397 376.75, unless the context clearly requires otherwise, the term:
1398 (4) “Backlog” means reimbursement obligations incurred
1399 pursuant to s. 376.3071(12), prior to March 29, 1995, or
1400 authorized for reimbursement under the provisions of s.
1401 376.3071(12), pursuant to chapter 95-2, Laws of Florida. Claims
1402 within the backlog are subject to adjustment, where appropriate.
1403 (30) “Person responsible for conducting site
1404 rehabilitation” means the site owner, operator, or the person
1405 designated by the site owner or operator on the reimbursement
1406 application. Mortgage holders and trust holders may be eligible
1407 to participate in the reimbursement program pursuant to s.
1408 376.3071(12).
1409 Section 5. Subsection (5) of section 376.302, Florida
1410 Statutes, is amended to read:
1411 376.302 Prohibited acts; penalties.—
1412 (5) Any person who commits fraud in representing his or her
1413 their qualifications as a contractor for reimbursement or in
1414 submitting a payment invoice reimbursement request pursuant to
1415 s. 376.3071 s. 376.3071(12) commits a felony of the third
1416 degree, punishable as provided in s. 775.082, s. 775.083, or s.
1417 775.084.
1418 Section 6. Subsection (6) of section 376.305, Florida
1419 Statutes, is amended to read:
1420 376.305 Removal of prohibited discharges.—
1421 (6) The Legislature created the Abandoned Tank Restoration
1422 Program in response to the need to provide financial assistance
1423 for cleanup of sites that have abandoned petroleum storage
1424 systems. For purposes of this subsection, the term “abandoned
1425 petroleum storage system” means a shall mean any petroleum
1426 storage system that has not stored petroleum products for
1427 consumption, use, or sale since March 1, 1990. The department
1428 shall establish the Abandoned Tank Restoration Program to
1429 facilitate the restoration of sites contaminated by abandoned
1430 petroleum storage systems.
1431 (a) To be included in the program:
1432 1. An application must be submitted to the department by
1433 June 30, 1996, certifying that the system has not stored
1434 petroleum products for consumption, use, or sale at the facility
1435 since March 1, 1990.
1436 2. The owner or operator of the petroleum storage system
1437 when it was in service must have ceased conducting business
1438 involving consumption, use, or sale of petroleum products at
1439 that facility on or before March 1, 1990.
1440 3. The site is not otherwise eligible for the cleanup
1441 programs pursuant to s. 376.3071 or s. 376.3072.
1442 (b) In order to be eligible for the program, petroleum
1443 storage systems from which a discharge occurred must be closed
1444 pursuant to in accordance with department rules before prior to
1445 an eligibility determination. However, if the department
1446 determines that the owner of the facility cannot is financially
1447 unable to comply with the department’s petroleum storage system
1448 closure requirements and all other eligibility requirements are
1449 met, the petroleum storage system closure requirements shall be
1450 waived. The department shall take into consideration the owner’s
1451 net worth and the economic impact on the owner in making the
1452 determination of the owner’s financial ability. The June 30,
1453 1996, application deadline shall be waived for owners who cannot
1454 are financially unable to comply.
1455 (c) Sites accepted in the program are will be eligible for
1456 site rehabilitation funding as provided in s. 376.3071 s.
1457 376.3071(12) or s. 376.30711, as appropriate.
1458 (d) The following sites are excluded from eligibility:
1459 1. Sites on property of the Federal Government;
1460 2. Sites contaminated by pollutants that are not petroleum
1461 products;
1462 3. Sites where the department has been denied site access;
1463 or
1464 4. Sites which are owned by a any person who had knowledge
1465 of the polluting condition when title was acquired unless the
1466 that person acquired title to the site after issuance of a
1467 notice of site eligibility by the department.
1468 (e) Participating sites are subject to a deductible as
1469 determined by rule, not to exceed $10,000.
1470
1471 The provisions of This subsection does do not relieve a any
1472 person who has acquired title after subsequent to July 1, 1992,
1473 from the duty to establish by a preponderance of the evidence
1474 that he or she undertook, at the time of acquisition, all
1475 appropriate inquiry into the previous ownership and use of the
1476 property consistent with good commercial or customary practice
1477 in an effort to minimize liability, as required by s.
1478 376.308(1)(c).
1479 Section 7. Paragraph (a) of subsection (1) and subsections
1480 (3), (4), and (9) of section 376.30714, Florida Statutes, are
1481 amended to read:
1482 376.30714 Site rehabilitation agreements.—
1483 (1) In addition to the legislative findings provided in s.
1484 376.3071, the Legislature finds and declares:
1485 (a) The provisions of s. 376.3071(5)(a) ss. 376.3071(5)(a)
1486 and 376.30711 have delayed cleanup of low-priority sites
1487 determined to be eligible for state funding under that section
1488 and ss. 376.305, 376.3071, and 376.3072.
1489 (3) Free product attributable to a new discharge shall be
1490 removed to the extent practicable and pursuant to in accordance
1491 with department rules adopted pursuant to s. 376.3071(5) at the
1492 expense of the owner, operator, or other responsible party. Free
1493 product attributable to existing contamination shall be removed
1494 pursuant to in accordance with s. 376.3071(5) and (6), or s.
1495 376.30711(1)(b), and department rules adopted pursuant thereto.
1496 (4) Beginning January 1, 1999, the department may is
1497 authorized to negotiate and enter into site rehabilitation
1498 agreements with applicants at sites with eligible existing
1499 contamination at which a new discharge occurs. The site
1500 rehabilitation agreement must shall include, but is not be
1501 limited to, allocation of the funding responsibilities of the
1502 department and the applicant for cleanup of the qualified site,
1503 establishment of a mechanism to guarantee the applicant’s
1504 commitment to pay its agreed amount of site rehabilitation as
1505 set forth in the agreement, and establishment of the priority in
1506 which cleanup of the qualified site will occur. Under any such a
1507 negotiated site rehabilitation agreement, the applicant may not
1508 shall be responsible for no more than the cleanup costs that are
1509 attributable to the new discharge. However, the payment of any
1510 applicable deductibles, copayments, or other program eligibility
1511 requirements under ss. 376.305, 376.3071, and 376.3072 shall
1512 continue to apply to the existing contamination and must be
1513 accounted for in the negotiated site rehabilitation agreement.
1514 The department may is further authorized, pursuant to this
1515 section, to preapprove or conduct additional assessment
1516 activities at the site.
1517 (9) Site rehabilitation conducted at qualified sites shall
1518 be conducted pursuant to s. 376.3071(5)(b) and (6) under the
1519 provisions of ss. 376.3071(5)(b) and 376.30711. If the terms of
1520 the agreement are not fulfilled by the applicant, the applicant
1521 forfeits the any right to continued funding for any site
1522 rehabilitation work under the agreement and is shall be subject
1523 to enforcement action by the department or local government to
1524 compel cleanup of the new discharge.
1525 Section 8. Subsection (2) of section 376.3072, Florida
1526 Statutes, is amended to read:
1527 376.3072 Florida Petroleum Liability and Restoration
1528 Insurance Program.—
1529 (2)(a) An Any owner or operator of a petroleum storage
1530 system may become an insured in the restoration insurance
1531 program at a facility if provided:
1532 1. A site at which an incident has occurred is shall be
1533 eligible for restoration if the insured is a participant in the
1534 third-party liability insurance program or otherwise meets
1535 applicable financial responsibility requirements. After July 1,
1536 1993, the insured must also provide the required excess
1537 insurance coverage or self-insurance for restoration to achieve
1538 the financial responsibility requirements of 40 C.F.R. s.
1539 280.97, subpart H, not covered by paragraph (d).
1540 2. A site that which had a discharge reported before prior
1541 to January 1, 1989, for which notice was given pursuant to s.
1542 376.3071(10) s. 376.3071(9) or (12), and that which is
1543 ineligible for the third-party liability insurance program
1544 solely due to that discharge is shall be eligible for
1545 participation in the restoration program for an any incident
1546 occurring on or after January 1, 1989, pursuant to in accordance
1547 with subsection (3). Restoration funding for an eligible
1548 contaminated site will be provided without participation in the
1549 third-party liability insurance program until the site is
1550 restored as required by the department or until the department
1551 determines that the site does not require restoration.
1552 3. Notwithstanding paragraph (b), a site where an
1553 application is filed with the department before prior to January
1554 1, 1995, where the owner is a small business under s.
1555 288.703(6), a state community college with less than 2,500 FTE,
1556 a religious institution as defined by s. 212.08(7)(m), a
1557 charitable institution as defined by s. 212.08(7)(p), or a
1558 county or municipality with a population of less than 50,000, is
1559 shall be eligible for up to $400,000 of eligible restoration
1560 costs, less a deductible of $10,000 for small businesses,
1561 eligible community colleges, and religious or charitable
1562 institutions, and $30,000 for eligible counties and
1563 municipalities, if provided that:
1564 a. Except as provided in sub-subparagraph e., the facility
1565 was in compliance with department rules at the time of the
1566 discharge.
1567 b. The owner or operator has, upon discovery of a
1568 discharge, promptly reported the discharge to the department,
1569 and drained and removed the system from service, if necessary.
1570 c. The owner or operator has not intentionally caused or
1571 concealed a discharge or disabled leak detection equipment.
1572 d. The owner or operator proceeds to complete initial
1573 remedial action as specified defined by department rules.
1574 e. The owner or operator, if required and if it has not
1575 already done so, applies for third-party liability coverage for
1576 the facility within 30 days after of receipt of an eligibility
1577 order issued by the department pursuant to this subparagraph
1578 provision.
1579
1580 However, the department may consider in-kind services from
1581 eligible counties and municipalities in lieu of the $30,000
1582 deductible. The cost of conducting initial remedial action as
1583 defined by department rules is shall be an eligible restoration
1584 cost pursuant to this subparagraph provision.
1585 4.a. By January 1, 1997, facilities at sites with existing
1586 contamination must shall be required to have methods of release
1587 detection to be eligible for restoration insurance coverage for
1588 new discharges subject to department rules for secondary
1589 containment. Annual storage system testing, in conjunction with
1590 inventory control, shall be considered to be a method of release
1591 detection until the later of December 22, 1998, or 10 years
1592 after the date of installation or the last upgrade. Other
1593 methods of release detection for storage tanks which meet such
1594 requirement are:
1595 (I) Interstitial monitoring of tank and integral piping
1596 secondary containment systems;
1597 (II) Automatic tank gauging systems; or
1598 (III) A statistical inventory reconciliation system with a
1599 tank test every 3 years.
1600 b. For pressurized integral piping systems, the owner or
1601 operator must use:
1602 (I) An automatic in-line leak detector with flow
1603 restriction meeting the requirements of department rules used in
1604 conjunction with an annual tightness or pressure test; or
1605 (II) An automatic in-line leak detector with electronic
1606 flow shut-off meeting the requirements of department rules.
1607 c. For suction integral piping systems, the owner or
1608 operator must use:
1609 (I) A single check valve installed directly below the
1610 suction pump if, provided there are no other valves between the
1611 dispenser and the tank; or
1612 (II) An annual tightness test or other approved test.
1613 d. Owners of facilities with existing contamination which
1614 that install internal release detection systems pursuant to in
1615 accordance with sub-subparagraph a. shall permanently close
1616 their external groundwater and vapor monitoring wells pursuant
1617 to in accordance with department rules by December 31, 1998.
1618 Upon installation of the internal release detection system, such
1619 these wells must shall be secured and taken out of service until
1620 permanent closure.
1621 e. Facilities with vapor levels of contamination meeting
1622 the requirements of or below the concentrations specified in the
1623 performance standards for release detection methods specified in
1624 department rules may continue to use vapor monitoring wells for
1625 release detection.
1626 f. The department may approve other methods of release
1627 detection for storage tanks and integral piping which have at
1628 least the same capability to detect a new release as the methods
1629 specified in this subparagraph.
1630 (b)1. To be eligible to be certified as an insured
1631 facility, for discharges reported after January 1, 1989, the
1632 owner or operator must shall file an affidavit upon enrollment
1633 in the program. The affidavit must shall state that the owner or
1634 operator has read and is familiar with this chapter and the
1635 rules relating to petroleum storage systems and petroleum
1636 contamination site cleanup adopted pursuant to ss. 376.303 and
1637 376.3071 and that the facility is in compliance with this
1638 chapter and applicable rules adopted pursuant to s. 376.303.
1639 Thereafter, the facility’s annual inspection report shall serve
1640 as evidence of the facility’s compliance with department rules.
1641 The facility’s certificate as an insured facility may be revoked
1642 only if the insured fails to correct a violation identified in
1643 an inspection report before a discharge occurs. The facility’s
1644 certification may be restored when the violation is corrected as
1645 verified by a reinspection.
1646 2. Except as provided in paragraph (a), to be eligible to
1647 be certified as an insured facility, the applicant must
1648 demonstrate to the department that the applicant has financial
1649 responsibility for third-party claims and excess coverage, as
1650 required by this section and 40 C.F.R. s. 280.97(h), and that
1651 the applicant maintains such insurance during the applicant’s
1652 participation as an insured facility.
1653 3. Should a reinspection of the facility be necessary to
1654 demonstrate compliance, the insured shall pay an inspection fee
1655 not to exceed $500 per facility to be deposited in the Inland
1656 Protection Trust Fund.
1657 4. Upon report of a discharge, the department shall issue
1658 an order stating that the site is eligible for restoration
1659 coverage unless the insured has intentionally caused or
1660 concealed a discharge or disabled leak detection equipment, has
1661 misrepresented facts in the affidavit filed pursuant to
1662 subparagraph 1., or cannot demonstrate that he or she has
1663 obtained and maintained the financial responsibility for third
1664 party claims and excess coverage as required in subparagraph 2.
1665
1666 This paragraph does not Nothing contained herein shall prevent
1667 the department from assessing civil penalties for noncompliance
1668 pursuant to this subsection as provided herein.
1669 (c) A lender that has loaned money to a participant in the
1670 Florida Petroleum Liability and Restoration Insurance Program
1671 and has held a mortgage lien, security interest, or any lien
1672 rights on the site primarily to protect the lender’s right to
1673 convert or liquidate the collateral in satisfaction of the debt
1674 secured, or a financial institution that which serves as a
1675 trustee for an insured in the program for the purpose of site
1676 rehabilitation, is shall be eligible for a state-funded cleanup
1677 of the site, if the lender forecloses the lien or accepts a deed
1678 in lieu of foreclosure on that property and acquires title, and
1679 as long as the following has occurred, as applicable:
1680 1. The owner or operator provided the lender with proof
1681 that the facility is eligible for the restoration insurance
1682 program at the time of the loan or before the discharge
1683 occurred.
1684 2. The financial institution or lender completes site
1685 rehabilitation and seeks reimbursement pursuant to s.
1686 376.3071(12) or conducts preapproved site rehabilitation
1687 pursuant to s. 376.3071 s. 376.30711, as appropriate.
1688 3. The financial institution or lender did not engage in
1689 management activities at the site before prior to foreclosure
1690 and does not operate the site or otherwise engage in management
1691 activities after foreclosure, except to comply with
1692 environmental statutes or rules or to prevent, abate, or
1693 remediate a discharge.
1694 (d)1. With respect to eligible incidents reported to the
1695 department before prior to July 1, 1992, the restoration
1696 insurance program shall provide up to $1.2 million of
1697 restoration for each incident and shall have an annual aggregate
1698 limit of $2 million of restoration per facility.
1699 2. For any site at which a discharge is reported on or
1700 after July 1, 1992, and for which restoration coverage is
1701 requested, the department shall pay for restoration in
1702 accordance with the following schedule:
1703 a. For discharges reported to the department from July 1,
1704 1992, to June 30, 1993, the department shall pay up to $1.2
1705 million of eligible restoration costs, less a $1,000 deductible
1706 per incident.
1707 b. For discharges reported to the department from July 1,
1708 1993, to December 31, 1993, the department shall pay up to $1.2
1709 million of eligible restoration costs, less a $5,000 deductible
1710 per incident. However, if, before prior to the date the
1711 discharge is reported and by September 1, 1993, the owner or
1712 operator can demonstrate financial responsibility in effect in
1713 accordance with 40 C.F.R. s. 280.97, subpart H, for coverage
1714 under sub-subparagraph c., the deductible will be $500. The $500
1715 deductible shall apply for a period of 1 year from the effective
1716 date of a policy or other form of financial responsibility
1717 obtained and in effect by September 1, 1993.
1718 c. For discharges reported to the department from January
1719 1, 1994, to December 31, 1996, the department shall pay up to
1720 $400,000 of eligible restoration costs, less a deductible of
1721 $10,000.
1722 d. For discharges reported to the department from January
1723 1, 1997, to December 31, 1998, the department shall pay up to
1724 $300,000 of eligible restoration costs, less a deductible of
1725 $10,000.
1726 e. Beginning January 1, 1999, no restoration coverage may
1727 not shall be provided.
1728 f. In addition, a supplemental deductible shall be added as
1729 follows:
1730 (I) A supplemental deductible of $5,000 if the owner or
1731 operator fails to report a suspected release within 1 working
1732 day after discovery.
1733 (II) A supplemental deductible of $10,000 if the owner or
1734 operator, within 3 days after discovery of an actual new
1735 discharge, fails to take steps to test or empty the storage
1736 system and complete such activity within 7 days.
1737 (III) A supplemental deductible of $25,000 if the owner or
1738 operator, after testing or emptying the storage system, fails to
1739 proceed within 24 hours thereafter to abate the known source of
1740 the discharge or to begin free product removal relating to an
1741 actual new discharge and fails to complete abatement within 72
1742 hours, although free product recovery may be ongoing.
1743 (e) The following are not eligible to participate in the
1744 Petroleum Liability and Restoration Insurance Program:
1745 1. Sites owned or operated by the Federal Government during
1746 the time the facility was in operation.
1747 2. Sites where the owner or operator has denied the
1748 department reasonable site access.
1749 3. Any third-party claims relating to damages caused by
1750 discharges discovered before prior to January 1, 1989.
1751 4. Any incidents discovered before prior to January 1,
1752 1989, are not eligible to participate in the restoration
1753 insurance program. However, this exclusion does shall not be
1754 construed to prevent a new incident at the same location from
1755 participation in the restoration insurance program if the owner
1756 or operator is otherwise eligible. This exclusion does shall not
1757 affect eligibility for participation in the Early Detection
1758 Incentive EDI Program.
1759
1760 Sites meeting the criteria of this subsection for which a site
1761 rehabilitation completion order was issued before prior to June
1762 1, 2008, do not qualify for the 2008 increase in site
1763 rehabilitation funding assistance and are bound by the pre-June
1764 1, 2008, limits. Sites meeting the criteria of this subsection
1765 for which a site rehabilitation completion order was not issued
1766 before prior to June 1, 2008, regardless of whether or not they
1767 have previously transitioned to nonstate-funded cleanup status,
1768 may continue state-funded cleanup pursuant to s. 376.3071(6) s.
1769 376.30711 until a site rehabilitation completion order is issued
1770 or the increased site rehabilitation funding assistance limit is
1771 reached, whichever occurs first. At no time shall expenses
1772 incurred outside the preapproved site rehabilitation program
1773 under s. 376.30711 be reimbursable.
1774 Section 9. Subsections (1) and (4) of section 376.3073,
1775 Florida Statutes, are amended to read:
1776 376.3073 Local programs and state agency programs for
1777 control of contamination.—
1778 (1) The department shall, to the greatest extent possible
1779 and cost-effective, contract with local governments to provide
1780 for the administration of its departmental responsibilities
1781 under ss. 376.305, 376.3071(4)(a)-(e), (h), (k), and (m) and (6)
1782 (l), (n), 376.30711, 376.3072, and 376.3077 through locally
1783 administered programs. The department may also contract with
1784 state agencies to carry out the restoration activities
1785 authorized pursuant to ss. 376.305, 376.3071, and 376.3072,
1786 376.305, and 376.30711. However, no such a contract may not
1787 shall be entered into unless the local government or state
1788 agency is deemed capable of carrying out such responsibilities
1789 to the department’s satisfaction.
1790 (4) Under no circumstances shall the cleanup criteria
1791 employed in locally administered programs or state agency
1792 programs or pursuant to local ordinance be more stringent than
1793 the criteria established by the department pursuant to s.
1794 376.3071(5) or (6) s. 376.30711.
1795 Section 10. Subsections (4) and (5) of section 376.3075,
1796 Florida Statutes, are amended to read:
1797 376.3075 Inland Protection Financing Corporation.—
1798 (4) The corporation may enter into one or more service
1799 contracts with the department to provide services to the
1800 department in connection with financing the functions and
1801 activities provided in ss. 376.30-376.317. The department may
1802 enter into one or more such service contracts with the
1803 corporation and provide for payments under such contracts
1804 pursuant to s. 376.3071(4)(n) s. 376.3071(4)(o), subject to
1805 annual appropriation by the Legislature. The proceeds from such
1806 service contracts may be used for the corporation’s
1807 administrative costs and expenses after payments as set forth in
1808 subsection (5). Each service contract may have a term of up to
1809 20 years. Amounts annually appropriated and applied to make
1810 payments under such service contracts may not include any funds
1811 derived from penalties or other payments received from any
1812 property owner or private party, including payments received
1813 under s. 376.3071(7)(b) s. 376.3071(6)(b). In compliance with s.
1814 287.0641 and other applicable provisions of law, the obligations
1815 of the department under such service contracts do not constitute
1816 a general obligation of the state or a pledge of the faith and
1817 credit or taxing power of the state, and nor may such
1818 obligations are not obligations be construed in any manner as an
1819 obligation of the State Board of Administration or entities for
1820 which it invests funds, other than the department as provided in
1821 this section, but are payable solely from amounts available in
1822 the Inland Protection Trust Fund, subject to annual
1823 appropriation. In compliance with this subsection and s.
1824 287.0582, the service contract must expressly include the
1825 following statement: “The State of Florida’s performance and
1826 obligation to pay under this contract is contingent upon an
1827 annual appropriation by the Legislature.”
1828 (5) The corporation may issue and incur notes, bonds,
1829 certificates of indebtedness, or other obligations or evidences
1830 of indebtedness payable from and secured by amounts payable to
1831 the corporation by the department under a service contract
1832 entered into pursuant to subsection (4) for the purpose of
1833 financing the rehabilitation of petroleum contamination sites
1834 pursuant to ss. 376.30-376.317. The term of any such note, bond,
1835 certificate of indebtedness, or other obligation or evidence of
1836 indebtedness may not have a financing term that exceeds 15
1837 years. The corporation may select its financing team and issue
1838 its obligations through competitive bidding or negotiated
1839 contracts, whichever is most cost-effective. Any Indebtedness of
1840 the corporation does not constitute a debt or obligation of the
1841 state or a pledge of the faith and credit or taxing power of the
1842 state, but is payable from and secured by payments made by the
1843 department under the service contract pursuant to s.
1844 376.3071(4)(n) s. 376.3071(4)(o).
1845 Section 11. This act shall take effect July 1, 2014.