Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. CS for SB 314
       
       
       
       
       
       
                                Ì497664NÎ497664                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/08/2015           .                                
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       Appropriations Subcommittee on General Government (Simpson)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (6) of section 376.305, Florida
    6  Statutes, is amended to read:
    7         376.305 Removal of prohibited discharges.—
    8         (6) The Legislature created the Abandoned Tank Restoration
    9  Program in response to the need to provide financial assistance
   10  for cleanup of sites that have abandoned petroleum storage
   11  systems. For purposes of this subsection, the term “abandoned
   12  petroleum storage system” means a petroleum storage system that
   13  has not stored petroleum products for consumption, use, or sale
   14  since March 1, 1990. The department shall establish the
   15  Abandoned Tank Restoration Program to facilitate the restoration
   16  of sites contaminated by abandoned petroleum storage systems.
   17         (a) To be included in the program:
   18         1. An application must be submitted to the department by
   19  June 30, 1996, certifying that the system has not stored
   20  petroleum products for consumption, use, or sale at the facility
   21  since March 1, 1990.
   22         2. The owner or operator of the petroleum storage system
   23  when it was in service must have ceased conducting business
   24  involving consumption, use, or sale of petroleum products at
   25  that facility on or before March 1, 1990.
   26         3. The site is not otherwise eligible for the cleanup
   27  programs pursuant to s. 376.3071 or s. 376.3072.
   28         (b) In order to be eligible for the program, petroleum
   29  storage systems from which a discharge occurred must be closed
   30  pursuant to department rules before an eligibility
   31  determination. However, if the department determines that the
   32  owner of the facility cannot financially comply with the
   33  department’s petroleum storage system closure requirements and
   34  all other eligibility requirements are met, the petroleum
   35  storage system closure requirements shall be waived. The
   36  department shall take into consideration the owner’s net worth
   37  and the economic impact on the owner in making the determination
   38  of the owner’s financial ability. The June 30, 1996, application
   39  deadline shall be waived for owners who cannot financially
   40  comply.
   41         (c) Sites accepted in the program are eligible for site
   42  rehabilitation funding as provided in s. 376.3071.
   43         (d) The following sites are excluded from eligibility:
   44         1. Sites on property of the Federal Government;
   45         2. Sites contaminated by pollutants that are not petroleum
   46  products;
   47         3. Sites where the department has been denied site access;
   48  or
   49         4. Sites which are owned by a person who had knowledge of
   50  the polluting condition when title was acquired unless the
   51  person acquired title to the site after issuance of a notice of
   52  site eligibility by the department.
   53         (e) Participating sites are subject to a deductible as
   54  determined by rule, not to exceed $10,000.
   55  
   56  This subsection does not relieve a person who has acquired title
   57  after July 1, 1992, from the duty to establish by a
   58  preponderance of the evidence that he or she undertook, at the
   59  time of acquisition, all appropriate inquiry into the previous
   60  ownership and use of the property consistent with good
   61  commercial or customary practice in an effort to minimize
   62  liability, as required by s. 376.308(1)(c).
   63         Section 2. Paragraph (b) of subsection (12), and subsection
   64  (13) of section 376.3071, Florida Statutes, are amended, and
   65  paragraph (c) is added to subsection (12) of that section, to
   66  read:
   67         376.3071 Inland Protection Trust Fund; creation; purposes;
   68  funding.—
   69         (12) SITE CLEANUP.—
   70         (b) Low-risk Low-scored site initiative.—Notwithstanding
   71  subsections (5) and (6), a site with a priority ranking score of
   72  29 points or less may voluntarily participate in the low-risk
   73  low-scored site initiative regardless of whether the site is
   74  eligible for state restoration funding.
   75         1. To participate in the low-risk low-scored site
   76  initiative, the responsible party or property owner, or a
   77  responsible party that provides evidence of authorization from
   78  the property owner, must submit a “No Further Action” proposal
   79  and affirmatively demonstrate that the following conditions of
   80  paragraph (c) are met.:
   81         a. Upon reassessment pursuant to department rule, the site
   82  retains a priority ranking score of 29 points or less.
   83         b. Excessively contaminated soil, as defined by department
   84  rule, does not exist onsite as a result of a release of
   85  petroleum products.
   86         c. A minimum of 6 months of groundwater monitoring
   87  indicates that the plume is shrinking or stable.
   88         d. The release of petroleum products at the site does not
   89  adversely affect adjacent surface waters, including their
   90  effects on human health and the environment.
   91         e. The area of groundwater containing the petroleum
   92  products’ chemicals of concern is less than one-quarter acre and
   93  is confined to the source property boundaries of the real
   94  property on which the discharge originated.
   95         f. Soils onsite that are subject to human exposure found
   96  between land surface and 2 feet below land surface meet the soil
   97  cleanup target levels established by department rule or human
   98  exposure is limited by appropriate institutional or engineering
   99  controls.
  100         2. Upon affirmative demonstration that of the conditions
  101  under paragraph (c) are met subparagraph 1., the department
  102  shall issue a site rehabilitation completion order incorporating
  103  the determination of “No Further Action.proposal submitted by
  104  the property owner or the responsible party that provides
  105  evidence of the authorization from the property owner. Such
  106  determination acknowledges that minimal contamination exists
  107  onsite and that such contamination is not a threat to the public
  108  health, safety, or welfare, water resources, or the environment.
  109  If no contamination is detected, the department may issue a site
  110  rehabilitation completion order.
  111         3. Sites that are eligible for state restoration funding
  112  may receive payment of costs for the low-risk low-scored site
  113  initiative as follows:
  114         a. A responsible party or property owner, or responsible
  115  party that provides evidence of authorization from the property
  116  owner, may submit an assessment and limited remediation plan
  117  designed to affirmatively demonstrate that the site meets the
  118  conditions under paragraph (c) subparagraph 1. Notwithstanding
  119  the priority ranking score of the site, the department may
  120  approve the cost of the assessment and limited remediation,
  121  including up to 6 months of groundwater monitoring, in one or
  122  more task assignments, or modifications thereof, not to exceed
  123  the threshold amount provided in s. 287.017 for CATEGORY TWO,
  124  $30,000 for each site where the department has determined that
  125  the assessment and limited remediation, if applicable, will
  126  likely result in a determination of “No Further Action”. The
  127  department may not pay the costs associated with the
  128  establishment of institutional or engineering controls, with the
  129  exception of the costs associated with a professional land
  130  survey or specific purpose survey, if needed, and costs
  131  associated with obtaining a title report and recording fees.
  132         b. Following the assessment, the department may approve up
  133  to an additional $35,000 for interim source removal pursuant to
  134  department rule to achieve a “No Further Action” order or a site
  135  rehabilitation completion order pursuant to subparagraph 2.
  136         b. Following approval of initial site assessment results
  137  provided pursuant to state funding under sub-subparagraph a.,
  138  the department may approve up to an additional amount not to
  139  exceed the threshold amount provided in s. 287.017 for CATEGORY
  140  TWO, for limited remediation, where needed to achieve a
  141  determination of “No Further Action”.
  142         c.b. The assessment and limited remediation work shall be
  143  completed no later than 9 6 months after the department
  144  authorizes the start of a state funded low-risk site initiative
  145  task issues its approval. If groundwater monitoring is required
  146  after the assessment and limited remediation in order to satisfy
  147  the conditions of paragraph (c), the department may authorize an
  148  additional 6 months to complete the monitoring.
  149         d.c. No more than $15 $10 million for the low-risk low
  150  scored site initiative may be encumbered from the fund in any
  151  fiscal year. Funds shall be made available on a first-come,
  152  first-served basis and shall be limited to 10 sites in each
  153  fiscal year for each responsible party or property owner or each
  154  responsible party that provides evidence of authorization from
  155  the property owner.
  156         e.d. Program deductibles, copayments, and the limited
  157  contamination assessment report requirements under paragraph
  158  (13)(c) do not apply to expenditures under this paragraph.
  159         (c) The department shall issue a site rehabilitation
  160  completion order incorporating the “No Further Action Proposal”
  161  submitted by a property owner or a responsible party that
  162  provides evidence of authorization from the property owner upon
  163  affirmative demonstration that all of the following conditions
  164  are met:
  165         1. Soil saturated with petroleum or petroleum products, or
  166  soil that causes a total corrected hydrocarbon measurement of
  167  500 parts per million or higher for Gasoline Analytical Group or
  168  50 parts per million or higher for Kerosene Analytical Group, as
  169  defined by department rule, does not exist onsite as a result of
  170  a release of petroleum products.
  171         2. A minimum of 6 months of groundwater monitoring
  172  indicates that the plume is shrinking or stable.
  173         3. The release of petroleum products at the site does not
  174  adversely affect adjacent surface waters, including their
  175  effects on human health and the environment.
  176         4. The area of groundwater containing the petroleum
  177  products’ chemicals of concern is confined to the source
  178  property boundaries of the real property on which the discharge
  179  originated, or has migrated from the source property only to a
  180  transportation facility of the Department of Transportation.
  181         5. The groundwater contamination containing the petroleum
  182  products chemicals of concern is not a threat to any permitted
  183  potable water supply well.
  184         6. Soils onsite that are subject to human exposure found
  185  between land surface and 2 feet below land surface meet the soil
  186  cleanup target levels established pursuant to s.
  187  376.3071(5)(b)9., or human exposure is limited by appropriate
  188  institutional or engineering controls.
  189  
  190  Issuance of a site rehabilitation completion order under this
  191  paragraph acknowledges that minimal contamination exists onsite
  192  and that such contamination is not a threat to the public
  193  health, safety, or welfare, water resources, or the environment.
  194  If the department determines that a discharge for which a site
  195  rehabilitation completion order was issued pursuant to this
  196  subsection may pose a threat to the public health, safety, or
  197  welfare, water resources, or the environment, the issuance of
  198  the site rehabilitation completion order, with or without
  199  conditions, does not alter eligibility for state-funded
  200  rehabilitation that would otherwise be applicable under this
  201  section.
  202         (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
  203  detection, reporting, and cleanup of contamination caused by
  204  discharges of petroleum or petroleum products, the department
  205  shall, within the guidelines established in this subsection,
  206  implement a cost-sharing cleanup program to provide
  207  rehabilitation funding assistance for all property contaminated
  208  by discharges of petroleum or petroleum products from a
  209  petroleum storage system occurring before January 1, 1995,
  210  subject to a copayment provided for in a Petroleum Cleanup
  211  Participation Program site rehabilitation agreement. Eligibility
  212  is subject to an annual appropriation from the fund.
  213  Additionally, funding for eligible sites is contingent upon
  214  annual appropriation in subsequent years. Such continued state
  215  funding is not an entitlement or a vested right under this
  216  subsection. Eligibility shall be determined in the program,
  217  notwithstanding any other provision of law, consent order,
  218  order, judgment, or ordinance to the contrary.
  219         (a)1. The department shall accept any discharge reporting
  220  form received before January 1, 1995, as an application for this
  221  program, and the facility owner or operator need not reapply.
  222         2. Owners or operators of property, regardless of whether
  223  ownership has changed, which is contaminated by petroleum or
  224  petroleum products from a petroleum storage system may apply for
  225  such program by filing a written report of the contamination
  226  incident, including evidence that such incident occurred before
  227  January 1, 1995, with the department. Incidents of petroleum
  228  contamination discovered after December 31, 1994, at sites which
  229  have not stored petroleum or petroleum products for consumption,
  230  use, or sale after such date shall be presumed to have occurred
  231  before January 1, 1995. An operator’s filed report shall be an
  232  application of the owner for all purposes. Sites reported to the
  233  department after December 31, 1998, are not eligible for the
  234  program.
  235         (b) Subject to annual appropriation from the fund, sites
  236  meeting the criteria of this subsection are eligible for up to
  237  $400,000 of site rehabilitation funding assistance in priority
  238  order pursuant to subsections (5) and (6). Sites meeting the
  239  criteria of this subsection for which a site rehabilitation
  240  completion order was issued before June 1, 2008, do not qualify
  241  for the 2008 increase in site rehabilitation funding assistance
  242  and are bound by the pre-June 1, 2008, limits. Sites meeting the
  243  criteria of this subsection for which a site rehabilitation
  244  completion order was not issued before June 1, 2008, regardless
  245  of whether they have previously transitioned to nonstate-funded
  246  cleanup status, may continue state-funded cleanup pursuant to
  247  this section until a site rehabilitation completion order is
  248  issued or the increased site rehabilitation funding assistance
  249  limit is reached, whichever occurs first. The department may not
  250  pay expenses incurred beyond the scope of an approved contract.
  251         (c) Upon notification by the department that rehabilitation
  252  funding assistance is available for the site pursuant to
  253  subsections (5) and (6), the owner, operator, or person
  254  otherwise responsible for site rehabilitation shall provide the
  255  department with a limited contamination assessment report and
  256  shall enter into a Petroleum Cleanup Participation Program site
  257  rehabilitation agreement with the department. The agreement must
  258  provide for a 25-percent copayment by the owner, operator, or
  259  person otherwise responsible for conducting site rehabilitation.
  260  The owner, operator, or person otherwise responsible for
  261  conducting site rehabilitation shall adequately demonstrate the
  262  ability to meet the copayment obligation. The limited
  263  contamination assessment report and the copayment costs may be
  264  reduced or eliminated if the owner and all operators responsible
  265  for restoration under s. 376.308 demonstrate that they cannot
  266  financially comply with the copayment and limited contamination
  267  assessment report requirements. The department shall take into
  268  consideration the owner’s and operator’s net worth in making the
  269  determination of financial ability. In the event the department
  270  and the owner, operator, or person otherwise responsible for
  271  site rehabilitation cannot complete negotiation of the cost
  272  sharing agreement within 120 days after beginning negotiations,
  273  the department shall terminate negotiations and the site shall
  274  be ineligible for state funding under this subsection and all
  275  liability protections provided for in this subsection shall be
  276  revoked.
  277         (d) A report of a discharge made to the department by a
  278  person pursuant to this subsection or any rules adopted pursuant
  279  to this subsection may not be used directly as evidence of
  280  liability for such discharge in any civil or criminal trial
  281  arising out of the discharge.
  282         (e) This subsection does not preclude the department from
  283  pursuing penalties under s. 403.141 for violations of any law or
  284  any rule, order, permit, registration, or certification adopted
  285  or issued by the department pursuant to its lawful authority.
  286         (f) Upon the filing of a discharge reporting form under
  287  paragraph (a), the department or local government may not pursue
  288  any judicial or enforcement action to compel rehabilitation of
  289  the discharge. This paragraph does not prevent any such action
  290  with respect to discharges determined ineligible under this
  291  subsection or to sites for which rehabilitation funding
  292  assistance is available pursuant to subsections (5) and (6).
  293         (g) The following are excluded from participation in the
  294  program:
  295         1. Sites at which the department has been denied reasonable
  296  site access to implement this section.
  297         2. Sites that were active facilities when owned or operated
  298  by the Federal Government.
  299         3. Sites that are identified by the United States
  300  Environmental Protection Agency to be on, or which qualify for
  301  listing on, the National Priorities List under Superfund. This
  302  exception does not apply to those sites for which eligibility
  303  has been requested or granted as of the effective date of this
  304  act under the Early Detection Incentive Program established
  305  pursuant to s. 15, chapter 86-159, Laws of Florida.
  306         4. Sites for which contamination is covered under the Early
  307  Detection Incentive Program, the Abandoned Tank Restoration
  308  Program, or the Petroleum Liability and Restoration Insurance
  309  Program, in which case site rehabilitation funding assistance
  310  shall continue under the respective program.
  311         Section 3. Paragraph (a) of subsection (2) and subsection
  312  (4) of section 376.30713, Florida Statutes, are amended to read:
  313         376.30713 Advanced cleanup.—
  314         (2) The department may approve an application for advanced
  315  cleanup at eligible sites, before funding based on the site’s
  316  priority ranking established pursuant to s. 376.3071(5)(a),
  317  pursuant to this section. Only the facility owner or operator or
  318  the person otherwise responsible for site rehabilitation
  319  qualifies as an applicant under this section.
  320         (a) Advanced cleanup applications may be submitted between
  321  May 1 and June 30 and between November 1 and December 31 of each
  322  fiscal year. Applications submitted between May 1 and June 30
  323  shall be for the fiscal year beginning July 1. An application
  324  must consist of:
  325         1. A commitment to pay 25 percent or more of the total
  326  cleanup cost deemed recoverable under this section along with
  327  proof of the ability to pay the cost share. An application
  328  proposing that the department enter into a performance-based
  329  contract for the cleanup of 10 20 or more sites may use a
  330  commitment to pay, a demonstrated cost savings to the
  331  department, or both to meet the cost-share requirement. For an
  332  application relying on a demonstrated cost savings to the
  333  department, the applicant shall, in conjunction with the
  334  proposed agency term contractor, establish and provide in the
  335  application the percentage of cost savings in the aggregate that
  336  is being provided to the department for cleanup of the sites
  337  under the application compared to the cost of cleanup of those
  338  same sites using the current rates provided to the department by
  339  the proposed agency term contractor. The department shall
  340  determine whether the cost savings demonstration is acceptable.
  341  Such determination is not subject to chapter 120.
  342         2. A nonrefundable review fee of $250 to cover the
  343  administrative costs associated with the department’s review of
  344  the application.
  345         3. A limited contamination assessment report.
  346         4. A proposed course of action.
  347  
  348  The limited contamination assessment report must be sufficient
  349  to support the proposed course of action and to estimate the
  350  cost of the proposed course of action. Costs incurred related to
  351  conducting the limited contamination assessment report are not
  352  refundable from the Inland Protection Trust Fund. Site
  353  eligibility under this subsection or any other provision of this
  354  section is not an entitlement to advanced cleanup or continued
  355  restoration funding. The applicant shall certify to the
  356  department that the applicant has the prerequisite authority to
  357  enter into an advanced cleanup contract with the department. The
  358  certification must be submitted with the application.
  359         (4) The department may enter into contracts for a total of
  360  up to $25 $15 million of advanced cleanup work in each fiscal
  361  year. However, a facility or an applicant who bundles multiple
  362  sites as specified in subparagraph (2)(a)1. may not be approved
  363  for more than $5 million of cleanup activity in each fiscal
  364  year. A property owner or responsible party may enter into a
  365  voluntary cost-share agreement in which the property owner or
  366  responsible party commits to bundle multiple sites and lists the
  367  facilities that will be included in those future bundles. The
  368  facilities listed are not subject to agency term contractor
  369  assignment pursuant to department rule. The department reserves
  370  the right to terminate the voluntary cost-share agreement if the
  371  property owner or responsible party fails to submit an
  372  application to bundle multiple sites within an open application
  373  period in which it is eligible to participate. For the purposes
  374  of this section, the term “facility” includes, but is not
  375  limited to, multiple site facilities such as airports, port
  376  facilities, and terminal facilities even though such enterprises
  377  may be treated as separate facilities for other purposes under
  378  this chapter.
  379         Section 4. This act shall take effect July 1, 2015.
  380  
  381  ================= T I T L E  A M E N D M E N T ================
  382  And the title is amended as follows:
  383         Delete everything before the enacting clause
  384  and insert:
  385                        A bill to be entitled                      
  386         An act relating to the Petroleum Restoration Program;
  387         amending s. 376.305, F.S.; removing the requirement
  388         that applications for the Abandoned Tank Restoration
  389         Program must have been submitted to the Department of
  390         Environmental Protection by a certain time; deleting
  391         provisions prohibiting the relief of liability for
  392         persons who acquired title after a certain date;
  393         amending s. 376.3071, F.S.; revising the conditions
  394         for eligibility and methods for payment of costs for
  395         the low-risk site initiative; clarifying that a change
  396         in ownership does not preclude a site from entering
  397         into the program; amending s. 376.30713, F.S.;
  398         reducing the number of sites that may be proposed for
  399         certain advanced cleanup applications; increasing the
  400         total amount for which the department may contract for
  401         advanced cleanup work in a fiscal year; authorizing
  402         property owners and responsible parties to enter into
  403         voluntary cost-share agreements under certain
  404         circumstances; providing an effective date.