HB 1365 2003
1	A bill to be entitled
2	An act relating to phosphogypsum management; amending s.
3	403.4154, F.S.; providing a third-degree felony penalty
4	for willfully, knowingly, or with reckless indifference or
5	gross carelessness, misstating or misrepresenting the
6	financial condition or closure costs of an entity engaged
7	in managing, owning, or operating a phosphogypsum stack or
8	stack system; providing a fine of not more than $50,000
9	and imprisonment for 5 years for each offense; prohibiting
10	corporate officers, owners, and operators of a
11	phosphogypsum stack or stack system from issuing dividends
12	or making other distributions from retained earnings in
13	the event of a failure of the owner or operator to meet
14	financial responsibility tests or regulatory requirements
15	for phosphogypsum stack operations; providing a third-
16	degree felony penalty for violation; providing a fine of
17	not more than $50,000 and imprisonment for 5 years for
18	each offense; providing grounds for appointment by the
19	court of a receiver or custodian for the owner of a
20	phosphogypsum stack or stack system; providing
21	responsibility of the court-appointed receiver or
22	custodian; authorizing the Department of Environmental
23	Protection to impose a lien on the real, personal, and
24	intangible property of the owner or operator of a
25	phosphogypsum stack system in a specified amount as a
26	result of actions by the department to abate or
27	substantially reduce an imminent hazard or to close a
28	phosphogypsum stack system and carry out postclosure care;
29	providing severability; providing an effective date.
30
31	Be It Enacted by the Legislature of the State of Florida:
32
33	Section 1. Section 403.4154, Florida Statutes, is amended
34	to read:
35	403.4154 Phosphogypsum management program.--
36	(1) DEFINITIONS.--As used in this section, the term:
37	(a) "Department" means the Department of Environmental
38	Protection.
39	(b) "Existing stack" means a phosphogypsum stack, as
40	defined in paragraph (d), that is:
41	1. In existence in this state on May 12, 1993; or
42	2. Constructed in this state after May 12, 1993, and for
43	which the department has received a certification of completion
44	of construction submitted by the owner of the newly constructed
45	phosphogypsum stack.
46
47	The term "existing stack" does not include a phosphogypsum stack
48	that has been closed pursuant to a department permit or order.
49	(c) "Phosphogypsum" means calcium sulfate and byproducts
50	produced by the reaction of sulfuric acid with phosphate rock to
51	produce phosphoric acid.
52	(d) "Phosphogypsum stack" means any defined geographic
53	area associated with a phosphoric acid production facility in
54	which phosphogypsum is disposed of or stored, other than within
55	a fully enclosed building, container, or tank.
56	(e) "Phosphogypsum stack system" means the phosphogypsum
57	stack, pile, or landfill, together with all pumps, piping,
58	ditches, drainage conveyances, water-control structures,
59	collection pools, cooling ponds, surge ponds, and any other
60	collection or conveyance system associated with the transport of
61	phosphogypsum from the plant to the phosphogypsum stack, its
62	management at the stack, and the process-wastewater return to
63	the phosphoric acid production or other process. This definition
64	specifically includes toe drain systems and ditches and other
65	leachate collection systems but does not include conveyances
66	within the confines of the fertilizer production plant or
67	existing areas used in emergency circumstances caused by
68	rainfall events of high volume or duration for the temporary
69	storage of process wastewater to avoid discharges to surface
70	waters of the state, which process wastewater must be removed
71	from the temporary storage area as expeditiously as possible,
72	but not to exceed 120 days after each emergency.
73	(f) "Process wastewater" means any water that, during
74	manufacturing or processing, comes into direct contact with or
75	results from the production or use of any raw material,
76	intermediate product, finished product, byproduct, or waste
77	product, along with any leachate or runoff from the
78	phosphogypsum stack system. This term does not include
79	contaminated nonprocess wastewater as that term is defined in 40
80	C.F.R. part 418.11(c).
81	(2) REGULATORY PROGRAM.--
82	(a) It is the intent of the Legislature that the
83	department develop a program for the sound and effective
84	regulation of phosphogypsum stack systems in the state.
85	(b) The department shall adopt rules that prescribe
86	acceptable construction designs for new or expanded
87	phosphogypsum stack systems and that prescribe permitting
88	criteria for operation, closure criteria, long-term-care
89	requirements, and closurefinancial responsibility requirements
90	for phosphogypsum stack systems.
91	(c) Whoever willfully, knowingly, or with reckless
92	indifference or gross carelessness misstates or misrepresents
93	the financial condition or closure costs of an entity engaged in
94	managing, owning or operating a phosphogypsum stack or stack
95	system commits a felony of the third degree punishable as
96	provided in s. 775.082 or s. 775.083 by a fine of not more than
97	$50,000 and by imprisonment for 5 years for each offense. Each
98	day during any portion of which such violation occurs
99	constitutes a separate offense.
100	(d) Corporate officers, owners, and operators of a
101	phosphogypsum stack or stack system are prohibited from issuing
102	dividends or making other distributions from retained earnings
103	in the event of a failure of the owner or operator to meet the
104	financial responsibility tests or regulatory requirements for
105	phosphogypsum stack operations. Whoever willfully, knowingly,
106	or with reckless indifference or gross carelessness, violates
107	this prohibition commits a felony of the third degree punishable
108	as provided in s. 775.082 or s. 775.083 by a fine of not more
109	than $50,000 and by imprisonment for 5 years for each offense.
110	Each day during any portion of which such violation occurs
111	constitutes a separate offense.
112	(e) It shall be grounds for appointment of a receiver or
113	custodian for the owner or operator of a phosphogypsum stack or
114	stack system by the circuit court in which such stack or stack
115	system is located, if such owner or operator fails to meet the
116	financial responsibility requirements imposed by rule or law and
117	continues to remain out of compliance for 120 days. The primary
118	responsibility and function of the court-appointed receiver or
119	custodian shall be to bring the phosphogypsum stack or stack
120	system into compliance with the rules of the department.
121	(3) ABATEMENT OF IMMINENT HAZARD.--
122	(a) The department may take action to abate or
123	substantially reduce any imminent hazard caused by the physical
124	condition, maintenance, operation, or closure of a phosphogypsum
125	stack system.
126	(b) An imminent hazard exists if the physical condition,
127	maintenance, operation, or closure of a phosphogypsum stack
128	system creates an immediate and substantial danger to human
129	health, safety, or welfare or to the environment. A
130	phosphogypsum stack system is presumed not to cause an imminent
131	hazard if the physical condition and operation of the system are
132	in compliance with all applicable department rules.
133	(c) If the department determines that the physical
134	condition, maintenance, operation, or closure of a phosphogypsum
135	stack system poses an imminent hazard, the department shall
136	request access to the property on which such stack system is
137	located from the owner or operator of the stack system for the
138	purposes of taking action to abate or substantially reduce the
139	imminent hazard. If the department, after reasonable effort, is
140	unable to timely obtain the necessary access to abate or
141	substantially reduce the imminent hazard, the department may
142	institute action in its own name, using the procedures and
143	remedies of s. 403.121 or s. 403.131, to abate or substantially
144	reduce an imminent hazard. Whenever serious harm to human
145	health, safety, or welfare, to the environment, or to private or
146	public property may occur prior to completion of an
147	administrative hearing or other formal proceeding that might be
148	initiated to abate the risk of serious harm, the department may
149	obtain from the court, ex parte, an injunction without paying
150	filing and service fees prior to the filing and service of
151	process.
152	(d) To abate or substantially reduce an imminent hazard,
153	the department may take any appropriate action, including, but
154	not limited to, using employees of the department or contracting
155	with other state or federal agencies, with private third-party
156	contractors, or with the owner or operator of the stack system,
157	or financing, compensating, or funding a receiver, trustee, or
158	owner of the stack system, to perform all or part of the work.
159	(e) The department shall recover from the owner or
160	operator of the phosphogypsum stack system to the use of the
161	Nonmandatory Land Reclamation Trust Fund all moneys expended
162	from the fund, including funds expended prior to the effective
163	date of this section, to abate an imminent hazard posed by the
164	phosphogypsum stack system plus a penalty equal to an amount
165	calculated at 30 percent of such funds expended. This penalty
166	shall be imposed annually, and prorated from the date of payment
167	from the fund until the expended funds and the penalty are
168	repaid. If the department prevails in any action to recover
169	funds pursuant to this subsection, it may recover reasonable
170	attorney's fees and costs incurred. Phosphogypsum may not be
171	deposited on a stack until all moneys expended from the fund in
172	connection with the stack have been repaid, unless the
173	department determines that such placement is necessary to abate
174	or avoid an imminent hazard or unless otherwise authorized by
175	the department.
176	(f) The department may impose a lien on the real,
177	personal, and intangible property of the owner or operator of a
178	on which the phosphogypsum stack system that poses an imminent
179	hazard is located and on the real property underlying and other
180	assets located at associated phosphate fertilizer production
181	facilitiesequal in amount to the moneys expended from the
182	Nonmandatory Land Reclamation Trust Fund pursuant to paragraph
183	(d), including attorney's fees,and court costs, and penalties.
184	The owner of any property on which such a lien is imposed is
185	entitled to a release of the lien upon payment to the department
186	of the lien amount. The lien imposed by this section shalldoes
187	not take priority over any other prior perfectedlien on the
188	real property, personal property, or other assets referenced in
189	this paragraph, including, but not limited to, the associated
190	phosphate rock mine and reserves.
191	(4) REGISTRATION FEES.--
192	(a)1. The owner or operator of each existing phosphogypsum
193	stack who has not provided a performance bond, letter of credit,
194	trust fund agreement, or closure insurance to demonstrate
195	financial responsibility for closure and long-term care shall
196	pay to the department a fee as set forth in this paragraph. All
197	fees shall be deposited in the Nonmandatory Land Reclamation
198	Trust Fund.
199	2. The amount of the fee for each existing stack shall be
200	$75,000 for each of the five 12-month periods following July 1,
201	2001.
202	3. The amount of the fee for any new stack for which the
203	owner or operator has not provided a performance bond, letter of
204	credit, trust fund agreement, or closure insurance to
205	demonstrate financial responsibility for closure and long-term
206	care shall be $75,000 for each of the five 12-month periods
207	following the issuance by the department of a construction
208	permit for that stack.
209	4. Within 30 days after a phosphogypsum stack has been
210	certified as closed pursuant to rule 62-673.620(2) and (3),
211	Florida Administrative Code, the department shall refund to the
212	owner of the closed phosphogypsum stack an amount from the
213	Nonmandatory Land Reclamation Trust Fund equal to the total
214	amount of fee payments made by the owner or operator to the fund
215	in connection with the closed phosphogypsum stack, except that
216	any refund becoming payable prior to July 1, 2009, shall be paid
217	to the owner on or after that date.
218	(b) On or before August 1 of each year, the department
219	shall provide written notice to each owner of an existing stack
220	of any fee payable for the 12-month period commencing on the
221	immediately preceding July 1. Each owner shall remit the fee to
222	the department on or before August 31 of each year.
223	(5) CLOSURE OF ABANDONED SYSTEMS.--
224	(a) The department may expend money from the Nonmandatory
225	Land Reclamation Trust Fund to take all steps necessary to close
226	a phosphogypsum stack system and to carry out postclosure care
227	in accordance with department rules in effect as of the date of
228	commencement of closure activities, subject to the conditions
229	set forth in this subsection. To accomplish such closure and
230	postclosure care, the department may take any appropriate
231	action, including, but not limited to, using employees of the
232	department or by contracting with other state or federal
233	agencies, with private third-party contractors, or with the
234	owner or operator of the stack system, to perform all or part of
235	the work.
236	(b) The department may close a phosphogypsum stack system
237	through agreement with the owner or by court order. In
238	determining whether closure is appropriate, the court shall
239	consider whether closing the stack will protect human health,
240	safety, or welfare or the environment; the useful life of the
241	stack; the effect of delaying closure on the stability of the
242	fund; the likelihood that the stack will be operated again; and
243	any other relevant factors. If the court finds that closure is
244	appropriate, the court may appoint a receiver to oversee the
245	closure or shall authorize department employees, agents, and
246	contractors to enter all land owned by the owner of the
247	phosphogypsum stack system for the performance of closure and
248	postclosure activities.
249	(c) The department may impose a lien on the real,
250	personal, and intangible property of the owner or operator of
251	theon which a closed phosphogypsum stack system is located and
252	on the real property underlying and other assets located at its
253	formerly associated phosphate fertilizer production facilities
254	equal in amount to the moneys expended from the Nonmandatory
255	Land Reclamation Trust Fund pursuant to this subsection for
256	closure and postclosure care, attorney's fees, court costs, and
257	penalties. The owner of any property on which such a lien is
258	imposed is entitled to a release of the lien upon payment to the
259	department of the lien amount and execution of an agreement to
260	carry out postclosure care in accordance with applicable
261	department rules. The lien imposed by this section shalldoes
262	not take priority over any other prior perfectedlien on the
263	real property, personal property, or other assets referenced in
264	this paragraph, including, but not limited to, the associated
265	phosphate rock mine and reserves.
266	Section 2. If any provision of this act or the application
267	thereof to any person or circumstance is held invalid, the
268	invalidity shall not affect other provisions or applications of
269	the act which can be given effect without the invalid provision
270	or application, and to this end the provisions of this act are
271	declared severable.
272	Section 3. This act shall take effect upon becoming a law.