Senate Bill sb1376c1

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    Florida Senate - 2001                           CS for SB 1376

    By the Committee on Natural Resources and Senator Laurent





    312-1721-01

  1                      A bill to be entitled

  2         An act relating to mining; amending s. 378.035,

  3         F.S.; reserving certain funds in the

  4         Nonmandatory Land Reclamation Trust Fund for

  5         use by the Department of Environmental

  6         Protection for reclaiming lands; authorizing

  7         the department to use funds from the trust fund

  8         for the purpose of closing certain abandoned

  9         phosphogypsum stack systems; limiting the

10         period of operation of the program; requiring

11         the Bureau of Mine Reclamation to review the

12         sufficiency of the trust fund to support

13         certain objectives and make reports; amending

14         s. 378.601, F.S.; deleting provisions exempting

15         certain mining operations from review as

16         developments of regional impact; amending s.

17         403.4154, F.S.; defining the terms

18         "phosphogypsum stack system" and "process

19         wastewater"; authorizing the Department of

20         Environmental Protection to take action to

21         abate or reduce any imminent hazard caused by a

22         phosphogypsum stack system; requiring the

23         department to recover moneys from the owner or

24         operator of the system; providing for

25         attorney's fees and costs; authorizing the

26         department to impose a lien for the recovery of

27         such moneys; imposing certain fees upon an

28         owner or operator who has not demonstrated

29         financial responsibility; providing for the

30         refund of the fee upon closure of the

31         phosphogypsum stack; authorizing the department

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    Florida Senate - 2001                           CS for SB 1376
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  1         to expend moneys from the Nonmandatory Land

  2         Reclamation Trust Fund to close abandoned

  3         phosphogypsum stack systems; providing for a

  4         lien for the recovery of such moneys; amending

  5         s. 403.4155, F.S.; requiring the department to

  6         review certain rules and determine the adequacy

  7         of the rules; providing an effective date.

  8

  9  Be It Enacted by the Legislature of the State of Florida:

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11         Section 1.  Subsection (5) of section 378.035, Florida

12  Statutes, is amended, and subsections (8) and (9) are added to

13  that section, to read:

14         378.035  Department responsibilities and duties with

15  respect to Nonmandatory Land Reclamation Trust Fund.--

16         (5)  On July 1, 2001, $50 1997, $30 million of the

17  unencumbered funds within the Nonmandatory Land Reclamation

18  Trust Fund are hereby reserved for use by the department.

19         (a)  These reserved moneys are to be used to reclaim

20  lands disturbed by the severance of phosphate rock on or after

21  July 1, 1975, in the event that a mining company ceases mining

22  and the associated reclamation prior to all lands disturbed by

23  the operation being reclaimed. Moneys expended by the

24  department to accomplish reclamation pursuant to this

25  subsection shall become a lien upon the property enforceable

26  pursuant to chapter 85. The moneys received as a result of a

27  lien foreclosure or as repayment shall be deposited into the

28  trust fund. In the event the money received as a result of

29  lien foreclosure or repayment is less than the amount expended

30  for reclamation, the department shall use all means available

31  to recover, for the use of the fund, the difference from the

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    Florida Senate - 2001                           CS for SB 1376
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  1  affected parties. Paragraph (3)(b) shall apply to lands

  2  acquired as a result of a lien foreclosure.

  3         (b)  The department may also expend funds from the $50

  4  million reserve fund for the abatement of an imminent hazard

  5  as provided by s. 403.4154(3) and for the purpose of closing

  6  an abandoned phosphogypsum stack system and carrying out

  7  postclosure care as provided by s. 403.4154(5). Fees deposited

  8  in the Nonmandatory Land Reclamation Trust Fund pursuant to s.

  9  403.4154(4) may be used for the purposes authorized in this

10  paragraph. However, such fees may only be used at a stack

11  system if closure or imminent-hazard-abatement activities

12  initially commence on or after July 1, 2002.

13         (8)  The department may not accept any applications for

14  nonmandatory land reclamation programs after November 1, 2008.

15         (9)  The Bureau of Mine Reclamation shall review the

16  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

17  support the stated objectives and report to the secretary

18  annually with recommendations as appropriate. The report

19  submittal for calendar year 2008 shall specifically address

20  the effect of providing a future refund of fees paid pursuant

21  to s. 403.4154(4) following certification of stack closure

22  pursuant to department rules, and the report shall be

23  submitted to the Governor, the President of the Senate, and

24  the Speaker of the House of Representatives on or before March

25  1, 2009.

26         Section 2.  Subsection (5) of section 378.601, Florida

27  Statutes, is amended to read:

28         378.601  Heavy minerals.--

29         (5)  Any heavy mineral mining operation which annually

30  mines less than 500 acres and whose proposed consumption of

31  water is 3 million gallons per day or less shall not be

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    Florida Senate - 2001                           CS for SB 1376
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  1  required to undergo development of regional impact review

  2  pursuant to s. 380.06, provided permits and plan approvals

  3  pursuant to either this section and part IV of chapter 373, or

  4  s. 378.901, are issued. This subsection applies only in the

  5  following circumstances:

  6         (a)  Mining is conducted in counties where the operator

  7  has conducted heavy mineral mining activities prior to March

  8  1, 1997; and

  9         (b)  The operator of the heavy mineral mining operation

10  has executed a developer agreement pursuant to s. 380.032 or

11  has received a development order under s. 380.06(15) as of

12  March 1, 1997. Lands mined pursuant to this section need not

13  be the subject of the developer agreement or development

14  order.

15         Section 3.  Section 403.4154, Florida Statutes, is

16  amended to read:

17         403.4154  Phosphogypsum management program.--

18         (1)  DEFINITIONS.--As used in this section, the term:

19         (a)  "Department" means the Department of Environmental

20  Protection.

21         (b)  "Existing stack" means a phosphogypsum stack, as

22  defined in paragraph (d), that is:

23         1.  In existence in this state on May 12, 1993; or

24         2.  Constructed in this state after May 12, 1993, and

25  for which the department has received a certification of

26  completion of construction submitted by the owner of the newly

27  constructed phosphogypsum stack.

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29  The term "existing stack" does not include a phosphogypsum

30  stack that has been closed pursuant to a department permit or

31  order.

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    Florida Senate - 2001                           CS for SB 1376
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  1         (c)  "Phosphogypsum" means calcium sulfate and

  2  byproducts produced by the reaction of sulfuric acid with

  3  phosphate rock to produce phosphoric acid.

  4         (d)  "Phosphogypsum stack" means any defined geographic

  5  area associated with a phosphoric acid production facility in

  6  which phosphogypsum is disposed of or stored, other than

  7  within a fully enclosed building, container, or tank.

  8         (e)  "Phosphogypsum stack system" means the

  9  phosphogypsum stack, pile, or landfill, together with all

10  pumps, piping, ditches, drainage conveyances, water-control

11  structures, collection pools, cooling ponds, surge ponds, and

12  any other collection or conveyance system associated with the

13  transport of phosphogypsum from the plant to the phosphogypsum

14  stack, its management at the stack, and the process-wastewater

15  return to the phosphoric acid production or other process.

16  This definition specifically includes toe drain systems and

17  ditches and other leachate collection systems but does not

18  include conveyances within the confines of the fertilizer

19  production plant or existing areas used in emergency

20  circumstances caused by rainfall events of high volume or

21  duration for the temporary storage of process wastewater to

22  avoid discharges to surface waters of the state, which process

23  wastewater must be removed from the temporary storage area as

24  expeditiously as possible, but not to exceed 120 days after

25  each emergency.

26         (f)  "Process wastewater" means any water that, during

27  manufacturing or processing, comes into direct contact with or

28  results from the production or use of any raw material,

29  intermediate product, finished product, byproduct, or waste

30  product, along with any leachate or runoff from the

31  phosphogypsum stack system. This term does not include

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    Florida Senate - 2001                           CS for SB 1376
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  1  contaminated nonprocess wastewater as that term is defined in

  2  40 C.F.R. part 418.11(c).

  3         (2)  REGULATORY PROGRAM.--

  4         (a)  It is the intent of the Legislature that the

  5  department develop a program for the sound and effective

  6  regulation of phosphogypsum stack systems in the state. It is

  7  further the intent of the Legislature that such regulatory

  8  program include the imposition of an annual registration fee

  9  on stacks that have not been closed and that such fees be used

10  for the purpose of paying the costs of the department's review

11  of applications to permit the closure of stack systems or the

12  construction of new or expanded stack systems and of the

13  department's review of requests for deferral of mandatory

14  closure requirements.

15         (b)  The department shall adopt rules that prescribe

16  acceptable construction designs for new or expanded

17  phosphogypsum stack systems and that prescribe permitting

18  criteria for operation, closure criteria, long-term-care

19  long-term care requirements, and closure financial

20  responsibility requirements for phosphogypsum stack systems.

21         (3)  ABATEMENT OF IMMINENT HAZARD.--

22         (a)  The department may take action to abate or

23  substantially reduce any imminent hazard caused by the

24  physical condition, maintenance, operation, or closure of a

25  phosphogypsum stack system.

26         (b)  An imminent hazard exists if the physical

27  condition, maintenance, operation, or closure of a

28  phosphogypsum stack system creates an immediate and

29  substantial danger to human health, safety, or welfare or to

30  the environment. A phosphogypsum stack system is presumed not

31  to cause an imminent hazard if the physical condition and

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    Florida Senate - 2001                           CS for SB 1376
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  1  operation of the system are in compliance with all applicable

  2  department rules.

  3         (c)  If the department determines that the physical

  4  condition, maintenance, operation, or closure of a

  5  phosphogypsum stack system poses an imminent hazard, the

  6  department shall request access to the property on which such

  7  stack system is located from the owner or operator of the

  8  stack system for the purposes of taking action to abate or

  9  substantially reduce the imminent hazard. If the department,

10  after reasonable effort, is unable to timely obtain the

11  necessary access to abate or substantially reduce the imminent

12  hazard, the department may institute action in its own name,

13  using the procedures and remedies of s. 403.121 or s. 403.131,

14  to abate or substantially reduce an imminent hazard. Whenever

15  serious harm to human health, safety, or welfare, to the

16  environment, or to private or public property may occur prior

17  to completion of an administrative hearing or other formal

18  proceeding that might be initiated to abate the risk of

19  serious harm, the department may obtain from the court, ex

20  parte, an injunction without paying filing and service fees

21  prior to the filing and service of process.

22         (d)  To abate or substantially reduce an imminent

23  hazard, the department may take any appropriate action,

24  including, but not limited to, using employees of the

25  department or contracting with other state or federal

26  agencies, with private third-party contractors, or with the

27  owner or operator of the stack system to perform all or part

28  of the work.

29         (e)  The department shall recover from the owner or

30  operator of the phosphogypsum stack system to the use of the

31  Nonmandatory Land Reclamation Trust Fund all moneys expended

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    Florida Senate - 2001                           CS for SB 1376
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  1  from the fund, including funds expended prior to July 1, 2001,

  2  to abate an imminent hazard posed by the phosphogypsum stack

  3  system plus 30 percent annual interest on such funds following

  4  the date of payment from the fund. If the department prevails

  5  in any action to recover funds pursuant to this subsection, it

  6  may recover reasonable attorney's fees and costs incurred.

  7  Phosphogypsum may not be deposited on a stack until all moneys

  8  expended from the fund in connection with the stack have been

  9  repaid, unless the department determines that such placement

10  is necessary to abate or avoid an imminent hazard or unless

11  otherwise authorized by the department.

12         (f)  The department may impose a lien on the real

13  property on which the phosphogypsum stack system that poses an

14  imminent hazard is located and on the real property underlying

15  and other assets located at associated phosphate fertilizer

16  production facilities equal in amount to the moneys expended

17  from the Nonmandatory Land Reclamation Trust Fund pursuant to

18  paragraph (d), including attorney's fees and court costs. The

19  owner of any property on which such a lien is imposed is

20  entitled to a release of the lien upon payment to the

21  department of the lien amount. The lien imposed by this

22  section does not take priority over any other prior perfected

23  lien on the real property, personal property, or other assets

24  referenced in this paragraph, including, but not limited to,

25  the associated phosphate rock mine and reserves.

26         (4)(3)  REGISTRATION FEES.--

27         (a)1.  The owner or operator of each existing

28  phosphogypsum stack who has not provided a performance bond,

29  letter of credit, trust fund agreement, or closure insurance

30  to demonstrate financial responsibility for closure and

31  long-term care shall pay to the department a fee as set forth

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    Florida Senate - 2001                           CS for SB 1376
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  1  in this paragraph. All fees shall be deposited in the

  2  Nonmandatory Land Reclamation Trust Fund.

  3         2.  The amount of the fee for each existing stack shall

  4  be $75,000 for each of the five 12-month periods following

  5  July 1, 2001.

  6         3.  The amount of the fee for any new stack for which

  7  the owner or operator has not provided a performance bond,

  8  letter of credit, trust fund agreement, or closure insurance

  9  to demonstrate financial responsibility for closure and

10  long-term care shall be $75,000 for each of the five 12-month

11  periods following the issuing by the department of a

12  construction permit for that stack.

13         4.  Within 30 days after a phosphogypsum stack has been

14  certified as closed pursuant to rule 62-673.620(2) and (3),

15  Florida Administrative Code, the department shall refund to

16  the owner of the closed phosphogypsum stack an amount from the

17  Nonmandatory Land Reclamation Trust Fund equal to the total

18  amount of fee payments made by the owner or operator to the

19  fund in connection with the closed phosphogypsum stack, except

20  that any refund becoming payable prior to July 1, 2009, shall

21  be paid to the owner on or after that date.

22         (a)  The total annual registration fees for all

23  existing stacks shall be the amount required by the department

24  to accomplish the following activities:

25         1.  Review and processing of a request by an owner of a

26  phosphogypsum stack system that it be relieved of any

27  mandatory obligation to close the system, or any portion

28  thereof, prior to using the system for its entire remaining

29  useful life.

30         2.  Review and processing of an application to

31  construct a new or expanded phosphogypsum stack system.

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    Florida Senate - 2001                           CS for SB 1376
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  1         3.  Review and processing of an application to close a

  2  phosphogypsum stack system, or portion thereof.

  3         (b)  On or before August 1 of each fiscal year, the

  4  department shall provide written notice to each owner of an

  5  existing stack of any the annual registration fee payable for

  6  the 12-month period commencing on the immediately preceding

  7  July 1 that fiscal year. Each owner shall remit the annual

  8  registration fee to the department on or before August 31 of

  9  each year within 30 days after receipt of the notice. The

10  notice required by this section shall be accompanied by a

11  report prepared by the department presenting the expenditures

12  using annual registration fees required by this section made

13  by the department during the immediately preceding fiscal year

14  and indicating the amount of any unexpended funds.

15         (c)  The total annual registration fees for all

16  existing stacks shall not exceed $500,000. The annual

17  registration fee for each existing stack shall be the amount

18  calculated by dividing the maximum total registration fees

19  collectible in a particular fiscal year by the total number of

20  existing stacks as of June 30 of the immediately preceding

21  fiscal year.

22         (5)  CLOSURE OF ABANDONED SYSTEMS.--

23         (a)  The department may expend money from the

24  Nonmandatory Land Reclamation Trust Fund to take all steps

25  necessary to close a phosphogypsum stack system and to carry

26  out postclosure care in accordance with department rules in

27  effect as of the date of commencement of closure activities,

28  subject to the conditions set forth in this subsection. To

29  accomplish such closure and postclosure care, the department

30  may take any appropriate action, including, but not limited

31  to, using employees of the department or by contracting with

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    Florida Senate - 2001                           CS for SB 1376
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  1  other state or federal agencies, with private third-party

  2  contractors, or with the owner or operator of the stack

  3  system, to perform all or part of the work.

  4         (b)  The department may close a phosphogypsum stack

  5  system through agreement with the owner or by court order. In

  6  determining whether closure is appropriate, the court shall

  7  consider whether closing the stack will protect human health,

  8  safety, or welfare or the environment; the useful life of the

  9  stack; the effect of delaying closure on the stability of the

10  fund; the likelihood that the stack will be operated again;

11  and any other relevant factors. If the court finds that

12  closure is appropriate, the court may appoint a receiver to

13  oversee the closure or shall authorize department employees,

14  agents, and contractors to enter all land owned by the owner

15  of the phosphogypsum stack system for the performance of

16  closure and postclosure activities.

17         (c)  The department may impose a lien on the real

18  property on which a closed phosphogypsum stack system is

19  located and on the real property underlying and other assets

20  located at its formerly associated phosphate fertilizer

21  production facilities equal in amount to the moneys expended

22  from the Nonmandatory Land Reclamation Trust Fund pursuant to

23  this subsection for closure and postclosure care. The owner of

24  any property on which such a lien is imposed is entitled to a

25  release of the lien upon payment to the department of the lien

26  amount and execution of an agreement to carry out postclosure

27  care in accordance with applicable department rules. The lien

28  imposed by this section does not take priority over any other

29  prior perfected lien on the real property, personal property,

30  or other assets referenced in this paragraph, including, but

31

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    Florida Senate - 2001                           CS for SB 1376
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  1  not limited to, the associated phosphate rock mine and

  2  reserves.

  3         Section 4.  Section 403.4155, Florida Statutes, is

  4  amended to read:

  5         403.4155  Phosphogypsum management; rulemaking

  6  authority.--

  7         (1)  By July 1, 1999, The Department of Environmental

  8  Protection shall adopt rules to amend existing chapter 62-672,

  9  Florida Administrative Code, to ensure that impoundment

10  structures and water conveyance piping systems used in

11  phosphogypsum management are designed and maintained to meet

12  critical safety standards. The rules must require that any

13  impoundment structure used in a phosphogypsum stack system,

14  together with all pumps, piping, ditches, drainage

15  conveyances, water control structures, collection pools,

16  cooling ponds, surge ponds, and any other collection or

17  conveyance system associated with phosphogypsum transport,

18  cooling water, or the return of process wastewater, is

19  constructed using sound engineering practices and is operated

20  to avoid spills or discharges of materials which adversely

21  affect surface or ground waters. The rules must require that a

22  phosphogypsum stack system owner maintain a log detailing the

23  owner's operating inspection schedule, results, and any

24  corrective action taken based on the inspection results. The

25  rules must require phosphogypsum stack owners to maintain an

26  emergency contingency plan and demonstrate the ability to

27  mobilize equipment and manpower to respond to emergency

28  situations at phosphogypsum stack systems. The rules must

29  establish a reasonable time period not to exceed 12 months for

30  facilities to meet the provisions of the rules adopted

31  pursuant to this section.

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  1         (2)  By January 31, 2002, the department shall review

  2  chapter 62-673, Florida Administrative Code, to determine the

  3  adequacy of the financial-responsibility provisions contained

  4  in the rules and shall take any measures necessary to ensure

  5  that the rules provide sound and effective provisions to

  6  minimize risk to the environment and to public health and

  7  safety from the business failure of a phosphogypsum stack

  8  system.

  9         Section 5.  This act shall take effect July 1, 2001.

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    Florida Senate - 2001                           CS for SB 1376
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1376

  3

  4  The CS does not create the PSSSATF; rather the NLRTF will be
    used to house and disburse funds pursuant to the act. The CS
  5  also increases, from $30 million to $50 million, the amount
    that is reserved in the NLRTF for reclamation and permits the
  6  DEP to spend the reserved funds for abatement of eminent
    hazards and closure and post-closure care of abandoned stack
  7  systems. Stack registration fees may also be used for such
    purposes, but only if the activities commence on or after July
  8  1, 2002.

  9  Provisions in SB 1376 that allowed a $10 million transfer from
    the NLRTF to the PSSSATF are deleted.
10
    The CS requires the Bureau of Mine Reclamation to review the
11  sufficiency of the NLRTF to support the program established by
    the act and to annually report to the DEP its recommendations.
12  For 2008, the report must specifically address the effect of
    providing refunds to owners of closed stacks in the future.
13  The report must be submitted to the Governor and Legislature
    by March 1, 2009.
14
    Provisions authorizing the DEP to provide financial assistance
15  to abate or reduce an eminent hazard have been expanded to
    take any appropriate action necessary to abate or reduce an
16  eminent hazard, including using the DEP's employees, or
    contracting with other state or federal agencies, private
17  contractors, or with the owner or operator of the stack
    system.
18
    A requirement for notice to be issued to the owner of a stack
19  system posing an eminent hazard has been deleted. Instead, if
    the DEP determines that the physical condition, maintenance,
20  operation, or closure of a stack system poses an eminent
    hazard, the DEP must request access to the property in order
21  to take necessary action. If access if denied, the DEP may
    seek judicial enforcement. If serious harm may occur prior to
22  the completion of a formal proceeding, the DEP may obtain, ex
    parte, an injunction without paying filing and service fees
23  prior to the filing or service of process.

24  Provisions directing the DEP to recover funds expended to
    abate an eminent hazard from the owner of the stack have been
25  modified. The CS increases the rate of interest to be charged
    from 15 percent to 30 percent and now applies the requirement
26  to funds expended prior to July 1, 2001.

27  The CS clarifies that a lien imposed on the stack system and
    production facilities to recover funds expended to abate an
28  eminent hazard does not take priority over other prior
    perfected liens.
29
    Provisions providing for annual registration fees have been
30  changed. Registration fees are not required of stack owners or
    operators if specified types of financial responsibility for
31  closure and long-term care are provided to the DEP. If
    imposed, the annual fee will be $75,000 for each of the first
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  1  five years following July 1, 2001; there will be no further
    fees imposed. Fees will be deposited into the NLRTF. Any
  2  refund due the owner of a closed stack becoming payable prior
    to Jul 1, 2009, will be paid on or after that date.
  3
    Provisions relating to the closure of abandoned stack systems
  4  have been changed. The CS provides for closure through
    agreement with the owner or by court order. The bill provides
  5  criteria for a court to consider when determining whether a
    stack should be closed, and if it is to be closed the court
  6  may appoint a receiver to oversee the closure or authorize the
    DEP, agents, and contractors to enter the land for closure and
  7  postclosure activities.

  8  The CS authorizes the DEP to impose a lien on the real
    property associated with a stack and production facilities to
  9  recover amounts expended for closure and postclosure care.
    Such a lien does not take priority over any other prior
10  perfected lien.

11  The CS also requires the DEP, by January 31, 2002, to review
    ch. 62-673, F.A.C., to determine the adequacy of the financial
12  responsibility provisions in the administrative rules and take
    any action necessary to ensure the rules properly minimize
13  risks due to business failure of a stack system.

14  Finally, s. 378.601, F.S., is amended to delete provisions
    providing conditions for exempting certain small mining
15  operations from review as developments of regional impact.

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