Florida Senate - 2016                                     SB 100
       
       
        
       By Senator Simpson
       
       
       
       
       
       18-00070-16                                            2016100__
    1                        A bill to be entitled                      
    2         An act relating to the Petroleum Restoration Program;
    3         amending s. 376.305, F.S.; revising the eligibility
    4         requirements of the Abandoned Tank Restoration
    5         Program; deleting provisions prohibiting the relief of
    6         liability for persons who acquired title after a
    7         certain date; amending s. 376.3071, F.S.; renaming
    8         “the low-scored site initiative” as “the low-risk site
    9         initiative”; revising the conditions for eligibility
   10         and methods for payment of costs for the low-risk site
   11         initiative; revising the eligibility requirements for
   12         receiving rehabilitation funding; clarifying that a
   13         change in ownership does not preclude a site from
   14         entering into the program; amending s. 376.30713,
   15         F.S.; reducing the number of sites that may be
   16         proposed for certain advanced cleanup applications;
   17         increasing the total amount for which the department
   18         may contract for advanced cleanup work in a fiscal
   19         year; authorizing property owners and responsible
   20         parties to enter into voluntary cost-share agreements
   21         under certain circumstances; providing an effective
   22         date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Subsection (6) of section 376.305, Florida
   27  Statutes, is amended to read:
   28         376.305 Removal of prohibited discharges.—
   29         (6) The Legislature created the Abandoned Tank Restoration
   30  Program in response to the need to provide financial assistance
   31  for cleanup of sites that have abandoned petroleum storage
   32  systems. For purposes of this subsection, the term “abandoned
   33  petroleum storage system” means a petroleum storage system that
   34  has not stored petroleum products for consumption, use, or sale
   35  since March 1, 1990. The department shall establish the
   36  Abandoned Tank Restoration Program to facilitate the restoration
   37  of sites contaminated by abandoned petroleum storage systems.
   38         (a) To be included in the program:
   39         1. An application must be submitted to the department by
   40  June 30, 1996, certifying that the system has not stored
   41  petroleum products for consumption, use, or sale at the facility
   42  since March 1, 1990.
   43         2. The owner or operator of the petroleum storage system
   44  when it was in service must have ceased conducting business
   45  involving consumption, use, or sale of petroleum products at
   46  that facility on or before March 1, 1990.
   47         3. The site is not otherwise eligible for the cleanup
   48  programs pursuant to s. 376.3071 or s. 376.3072.
   49         4. The site is not otherwise eligible for the Petroleum
   50  Cleanup Participation Program under s. 376.3071(13) based on any
   51  discharge reporting form received by the department before
   52  January 1, 1995, or a written report of contamination submitted
   53  to the department on or before December 31, 1998.
   54         (b) In order to be eligible for the program, petroleum
   55  storage systems from which a discharge occurred must be closed
   56  pursuant to department rules before an eligibility
   57  determination. However, if the department determines that the
   58  owner of the facility cannot financially comply with the
   59  department’s petroleum storage system closure requirements and
   60  all other eligibility requirements are met, the petroleum
   61  storage system closure requirements shall be waived. The
   62  department shall take into consideration the owner’s net worth
   63  and the economic impact on the owner in making the determination
   64  of the owner’s financial ability. The June 30, 1996, application
   65  deadline shall be waived for owners who cannot financially
   66  comply.
   67         (c) Sites accepted in the program are eligible for site
   68  rehabilitation funding as provided in s. 376.3071.
   69         (d) The following sites are excluded from eligibility:
   70         1. Sites on property of the Federal Government;
   71         2. Sites contaminated by pollutants that are not petroleum
   72  products; or
   73         3. Sites where the department has been denied site access;
   74  or
   75         4. Sites which are owned by a person who had knowledge of
   76  the polluting condition when title was acquired unless the
   77  person acquired title to the site after issuance of a notice of
   78  site eligibility by the department.
   79         (e) Participating sites are subject to a deductible as
   80  determined by rule, not to exceed $10,000.
   81  
   82  This subsection does not relieve a person who has acquired title
   83  after July 1, 1992, from the duty to establish by a
   84  preponderance of the evidence that he or she undertook, at the
   85  time of acquisition, all appropriate inquiry into the previous
   86  ownership and use of the property consistent with good
   87  commercial or customary practice in an effort to minimize
   88  liability, as required by s. 376.308(1)(c).
   89         Section 2. Paragraph (b) of subsection (12) and subsection
   90  (13) of section 376.3071, Florida Statutes, are amended, and
   91  paragraph (c) is added to subsection (12) of that section, to
   92  read:
   93         376.3071 Inland Protection Trust Fund; creation; purposes;
   94  funding.—
   95         (12) SITE CLEANUP.—
   96         (b) Low-risk Low-scored site initiative.—Notwithstanding
   97  subsections (5) and (6), a site with a priority ranking score of
   98  29 points or less may voluntarily participate in the low-risk
   99  low-scored site initiative regardless of whether the site is
  100  eligible for state restoration funding.
  101         1. To participate in the low-risk low-scored site
  102  initiative, the responsible party or property owner, or a
  103  responsible party that provides evidence of authorization from
  104  the property owner, must submit a “No Further Action” proposal
  105  and affirmatively demonstrate that the following conditions
  106  under subparagraph 4. are met.:
  107         a. Upon reassessment pursuant to department rule, the site
  108  retains a priority ranking score of 29 points or less.
  109         b. Excessively contaminated soil, as defined by department
  110  rule, does not exist onsite as a result of a release of
  111  petroleum products.
  112         c. A minimum of 6 months of groundwater monitoring
  113  indicates that the plume is shrinking or stable.
  114         d. The release of petroleum products at the site does not
  115  adversely affect adjacent surface waters, including their
  116  effects on human health and the environment.
  117         e. The area of groundwater containing the petroleum
  118  products’ chemicals of concern is less than one-quarter acre and
  119  is confined to the source property boundaries of the real
  120  property on which the discharge originated.
  121         f. Soils onsite that are subject to human exposure found
  122  between land surface and 2 feet below land surface meet the soil
  123  cleanup target levels established by department rule or human
  124  exposure is limited by appropriate institutional or engineering
  125  controls.
  126         2. Upon affirmative demonstration that of the conditions
  127  under subparagraph 4. are met subparagraph 1., the department
  128  shall issue a site rehabilitation completion order incorporating
  129  the determination of “No Further Action.proposal submitted by
  130  the property owner or the responsible party that provides
  131  evidence of authorization from the property owner Such
  132  determination acknowledges that minimal contamination exists
  133  onsite and that such contamination is not a threat to the public
  134  health, safety, or welfare, water resources, or the environment.
  135  If no contamination is detected, the department may issue a site
  136  rehabilitation completion order.
  137         3. Sites that are eligible for state restoration funding
  138  may receive payment of costs for the low-risk low-scored site
  139  initiative as follows:
  140         a. A responsible party or property owner, or a responsible
  141  party that provides evidence of authorization from the property
  142  owner, may submit an assessment and limited remediation plan
  143  designed to affirmatively demonstrate that the site meets the
  144  conditions under subparagraph 4 subparagraph 1. Notwithstanding
  145  the priority ranking score of the site, the department may
  146  approve the cost of the assessment and limited remediation,
  147  including up to 6 months of groundwater monitoring, in one or
  148  more task assignments, or modifications thereof, not to exceed
  149  the threshold amount provided in s. 287.017 for CATEGORY TWO,
  150  $30,000 for each site where the department has determined that
  151  the assessment and limited remediation, if applicable, will
  152  likely result in a determination of “No Further Action.”. The
  153  department may not pay the costs associated with the
  154  establishment of institutional or engineering controls, with the
  155  exception of the costs associated with a professional land
  156  survey or specific purpose survey, if needed, and the costs
  157  associated with obtaining a title report and paying recording
  158  fees.
  159         b. After the approval of initial site assessment results
  160  provided pursuant to state funding under sub-subparagraph a.,
  161  the department may approve an additional amount not to exceed
  162  the threshold amount provided in s. 287.017 for CATEGORY TWO for
  163  limited remediation where needed to achieve a determination of
  164  “No Further Action.
  165         c.b. The assessment and limited remediation work shall be
  166  completed no later than 9 6 months after the department
  167  authorizes the start of a state-funded, low-risk site initiative
  168  task issues its approval. If groundwater monitoring is required
  169  after the assessment and limited remediation in order to satisfy
  170  the conditions under subparagraph 4., the department may
  171  authorize an additional 6 months to complete the monitoring.
  172         d.c. No more than $15 $10 million for the low-risk low
  173  scored site initiative may be encumbered from the fund in any
  174  fiscal year. Funds shall be made available on a first-come,
  175  first-served basis and shall be limited to 10 sites in each
  176  fiscal year for each responsible party or property owner or each
  177  responsible party that provides evidence of authorization from
  178  the property owner.
  179         e.d. Program deductibles, copayments, and the limited
  180  contamination assessment report requirements under paragraph
  181  (13)(c) do not apply to expenditures under this paragraph.
  182         4.The department shall issue a site rehabilitation
  183  completion order incorporating the “No Further Action” proposal
  184  submitted by a property owner or a responsible party that
  185  provides evidence of authorization from the property owner upon
  186  affirmative demonstration that all of the following conditions
  187  are met:
  188         a. Soil saturated with petroleum or petroleum products, or
  189  soil that causes a total corrected hydrocarbon measurement of
  190  500 parts per million or higher for Gasoline Analytical Group or
  191  50 parts per million or higher for Kerosene Analytical Group, as
  192  defined by department rule, does not exist onsite as a result of
  193  a release of petroleum products.
  194         b. A minimum of 6 months of groundwater monitoring
  195  indicates that the plume is shrinking or stable.
  196         c. The release of petroleum products at the site does not
  197  adversely affect adjacent surface waters, including their
  198  effects on human health and the environment.
  199         d. The area of groundwater containing the petroleum
  200  products’ chemicals of concern is confined to the source
  201  property boundaries of the real property on which the discharge
  202  originated, or has migrated from the source property to only a
  203  transportation facility of the Department of Transportation.
  204         e. The groundwater contamination containing the petroleum
  205  products’ chemicals of concern is not a threat to any permitted
  206  potable water supply well.
  207         f. Soils onsite found between land surface and 2 feet below
  208  land surface which are subject to human exposure meet the soil
  209  cleanup target levels established in subparagraph (5)(b)9., or
  210  human exposure is limited by appropriate institutional or
  211  engineering controls.
  212  
  213  Issuance of a site rehabilitation completion order under this
  214  paragraph acknowledges that minimal contamination exists onsite
  215  and that such contamination is not a threat to the public
  216  health, safety, or welfare, water resources, or the environment.
  217  If the department determines that a discharge for which a site
  218  rehabilitation completion order was issued pursuant to this
  219  paragraph may pose a threat to the public health, safety, or
  220  welfare, water resources, or the environment, the issuance of
  221  the site rehabilitation completion order, with or without
  222  conditions, does not alter eligibility for state-funded
  223  rehabilitation that would otherwise be applicable under this
  224  section.
  225         (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
  226  detection, reporting, and cleanup of contamination caused by
  227  discharges of petroleum or petroleum products, the department
  228  shall, within the guidelines established in this subsection,
  229  implement a cost-sharing cleanup program to provide
  230  rehabilitation funding assistance for all property contaminated
  231  by discharges of petroleum or petroleum products from a
  232  petroleum storage system occurring before January 1, 1995,
  233  subject to a copayment provided for in a Petroleum Cleanup
  234  Participation Program site rehabilitation agreement. Eligibility
  235  is subject to an annual appropriation from the fund.
  236  Additionally, funding for eligible sites is contingent upon
  237  annual appropriation in subsequent years. Such continued state
  238  funding is not an entitlement or a vested right under this
  239  subsection. Eligibility shall be determined in the program,
  240  notwithstanding any other provision of law, consent order,
  241  order, judgment, or ordinance to the contrary.
  242         (a)1. The department shall accept any discharge reporting
  243  form received before January 1, 1995, as an application for this
  244  program, and the facility owner or operator need not reapply.
  245         2. Owners or operators of property, regardless of whether
  246  ownership has changed, which is contaminated by petroleum or
  247  petroleum products from a petroleum storage system may apply for
  248  such program by filing a written report of the contamination
  249  incident, including evidence that such incident occurred before
  250  January 1, 1995, with the department. Incidents of petroleum
  251  contamination discovered after December 31, 1994, at sites which
  252  have not stored petroleum or petroleum products for consumption,
  253  use, or sale after such date shall be presumed to have occurred
  254  before January 1, 1995. An operator’s filed report shall be an
  255  application of the owner for all purposes. Sites reported to the
  256  department after December 31, 1998, are not eligible for the
  257  program.
  258         (b) Subject to annual appropriation from the fund, sites
  259  meeting the criteria of this subsection are eligible for up to
  260  $400,000 of site rehabilitation funding assistance in priority
  261  order pursuant to subsections (5) and (6). Sites meeting the
  262  criteria of this subsection for which a site rehabilitation
  263  completion order was issued before June 1, 2008, do not qualify
  264  for the 2008 increase in site rehabilitation funding assistance
  265  and are bound by the pre-June 1, 2008, limits. Sites meeting the
  266  criteria of this subsection for which a site rehabilitation
  267  completion order was not issued before June 1, 2008, regardless
  268  of whether they have previously transitioned to nonstate-funded
  269  cleanup status, may continue state-funded cleanup pursuant to
  270  this section until a site rehabilitation completion order is
  271  issued or the increased site rehabilitation funding assistance
  272  limit is reached, whichever occurs first. The department may not
  273  pay expenses incurred beyond the scope of an approved contract.
  274         (c) Upon notification by the department that rehabilitation
  275  funding assistance is available for the site pursuant to
  276  subsections (5) and (6), the owner, operator, or person
  277  otherwise responsible for site rehabilitation shall provide the
  278  department with a limited contamination assessment report and
  279  shall enter into a Petroleum Cleanup Participation Program site
  280  rehabilitation agreement with the department. The agreement must
  281  provide for a 25-percent copayment by the owner, operator, or
  282  person otherwise responsible for conducting site rehabilitation.
  283  The owner, operator, or person otherwise responsible for
  284  conducting site rehabilitation shall adequately demonstrate the
  285  ability to meet the copayment obligation. The limited
  286  contamination assessment report and the copayment costs may be
  287  reduced or eliminated if the owner and all operators responsible
  288  for restoration under s. 376.308 demonstrate that they cannot
  289  financially comply with the copayment and limited contamination
  290  assessment report requirements. The department shall take into
  291  consideration the owner’s and operator’s net worth in making the
  292  determination of financial ability. In the event the department
  293  and the owner, operator, or person otherwise responsible for
  294  site rehabilitation cannot complete negotiation of the cost
  295  sharing agreement within 120 days after beginning negotiations,
  296  the department shall terminate negotiations and the site shall
  297  be ineligible for state funding under this subsection and all
  298  liability protections provided for in this subsection shall be
  299  revoked.
  300         (d) A report of a discharge made to the department by a
  301  person pursuant to this subsection or any rules adopted pursuant
  302  to this subsection may not be used directly as evidence of
  303  liability for such discharge in any civil or criminal trial
  304  arising out of the discharge.
  305         (e) This subsection does not preclude the department from
  306  pursuing penalties under s. 403.141 for violations of any law or
  307  any rule, order, permit, registration, or certification adopted
  308  or issued by the department pursuant to its lawful authority.
  309         (f) Upon the filing of a discharge reporting form under
  310  paragraph (a), the department or local government may not pursue
  311  any judicial or enforcement action to compel rehabilitation of
  312  the discharge. This paragraph does not prevent any such action
  313  with respect to discharges determined ineligible under this
  314  subsection or to sites for which rehabilitation funding
  315  assistance is available pursuant to subsections (5) and (6).
  316         (g) The following are excluded from participation in the
  317  program:
  318         1. Sites at which the department has been denied reasonable
  319  site access to implement this section.
  320         2. Sites that were active facilities when owned or operated
  321  by the Federal Government.
  322         3. Sites that are identified by the United States
  323  Environmental Protection Agency to be on, or which qualify for
  324  listing on, the National Priorities List under Superfund. This
  325  exception does not apply to those sites for which eligibility
  326  has been requested or granted as of the effective date of this
  327  act under the Early Detection Incentive Program established
  328  pursuant to s. 15, chapter 86-159, Laws of Florida.
  329         4. Sites for which contamination is covered under the Early
  330  Detection Incentive Program, the Abandoned Tank Restoration
  331  Program, or the Petroleum Liability and Restoration Insurance
  332  Program, in which case site rehabilitation funding assistance
  333  shall continue under the respective program.
  334         Section 3. Paragraph (a) of subsection (2) and subsection
  335  (4) of section 376.30713, Florida Statutes, are amended to read:
  336         376.30713 Advanced cleanup.—
  337         (2) The department may approve an application for advanced
  338  cleanup at eligible sites, before funding based on the site’s
  339  priority ranking established pursuant to s. 376.3071(5)(a),
  340  pursuant to this section. Only the facility owner or operator or
  341  the person otherwise responsible for site rehabilitation
  342  qualifies as an applicant under this section.
  343         (a) Advanced cleanup applications may be submitted between
  344  May 1 and June 30 and between November 1 and December 31 of each
  345  fiscal year. Applications submitted between May 1 and June 30
  346  shall be for the fiscal year beginning July 1. An application
  347  must consist of:
  348         1. A commitment to pay 25 percent or more of the total
  349  cleanup cost deemed recoverable under this section along with
  350  proof of the ability to pay the cost share. An application
  351  proposing that the department enter into a performance-based
  352  contract for the cleanup of 10 20 or more sites may use a
  353  commitment to pay, a demonstrated cost savings to the
  354  department, or both to meet the cost-share requirement. For an
  355  application relying on a demonstrated cost savings to the
  356  department, the applicant shall, in conjunction with the
  357  proposed agency term contractor, establish and provide in the
  358  application the percentage of cost savings in the aggregate that
  359  is being provided to the department for cleanup of the sites
  360  under the application compared to the cost of cleanup of those
  361  same sites using the current rates provided to the department by
  362  the proposed agency term contractor. The department shall
  363  determine whether the cost savings demonstration is acceptable.
  364  Such determination is not subject to chapter 120.
  365         2. A nonrefundable review fee of $250 to cover the
  366  administrative costs associated with the department’s review of
  367  the application.
  368         3. A limited contamination assessment report.
  369         4. A proposed course of action.
  370  
  371  The limited contamination assessment report must be sufficient
  372  to support the proposed course of action and to estimate the
  373  cost of the proposed course of action. Costs incurred related to
  374  conducting the limited contamination assessment report are not
  375  refundable from the Inland Protection Trust Fund. Site
  376  eligibility under this subsection or any other provision of this
  377  section is not an entitlement to advanced cleanup or continued
  378  restoration funding. The applicant shall certify to the
  379  department that the applicant has the prerequisite authority to
  380  enter into an advanced cleanup contract with the department. The
  381  certification must be submitted with the application.
  382         (4) The department may enter into contracts for a total of
  383  up to $25 $15 million of advanced cleanup work in each fiscal
  384  year. However, a facility or an applicant who bundles multiple
  385  sites as specified in subparagraph (2)(a)1. may not be approved
  386  for more than $5 million of cleanup activity in each fiscal
  387  year. A property owner or responsible party may enter into a
  388  voluntary cost-share agreement in which the property owner or
  389  responsible party commits to bundle multiple sites and lists the
  390  facilities that will be included in those future bundles. The
  391  facilities listed are not subject to agency term contractor
  392  assignment pursuant to department rule. The department reserves
  393  the right to terminate the voluntary cost-share agreement if the
  394  property owner or responsible party fails to submit an
  395  application to bundle multiple sites within an open application
  396  period during which it is eligible to participate. For the
  397  purposes of this section, the term “facility” includes, but is
  398  not limited to, multiple site facilities such as airports, port
  399  facilities, and terminal facilities even though such enterprises
  400  may be treated as separate facilities for other purposes under
  401  this chapter.
  402         Section 4. This act shall take effect July 1, 2016.