Florida Senate - 2015   (Corrected Copy)    CS for CS for SB 314
       
       
        
       By the Committees on Appropriations; and Environmental
       Preservation and Conservation; and Senator Simpson
       
       
       
       
       576-04245A-15                                          2015314c2
    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 the
    8         low-scored site initiative 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; clarifying that a change in ownership does
   12         not preclude a site from entering into the program;
   13         revising the eligibility requirements for receiving
   14         rehabilitation funding; amending s. 376.30713, F.S.;
   15         reducing the number of sites that may be proposed for
   16         certain advanced cleanup applications; increasing the
   17         total amount for which the department may contract for
   18         advanced cleanup work in a fiscal year; authorizing
   19         property owners and responsible parties to enter into
   20         voluntary cost-share agreements under certain
   21         circumstances; providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Subsection (6) of section 376.305, Florida
   26  Statutes, is amended to read:
   27         376.305 Removal of prohibited discharges.—
   28         (6) The Legislature created the Abandoned Tank Restoration
   29  Program in response to the need to provide financial assistance
   30  for cleanup of sites that have abandoned petroleum storage
   31  systems. For purposes of this subsection, the term “abandoned
   32  petroleum storage system” means a petroleum storage system that
   33  has not stored petroleum products for consumption, use, or sale
   34  since March 1, 1990. The department shall establish the
   35  Abandoned Tank Restoration Program to facilitate the restoration
   36  of sites contaminated by abandoned petroleum storage systems.
   37         (a) To be included in the program:
   38         1. An application must be submitted to the department by
   39  June 30, 1996, certifying that the system has not stored
   40  petroleum products for consumption, use, or sale at the facility
   41  since March 1, 1990.
   42         2. The owner or operator of the petroleum storage system
   43  when it was in service must have ceased conducting business
   44  involving consumption, use, or sale of petroleum products at
   45  that facility on or before March 1, 1990.
   46         3. The site is not otherwise eligible for the cleanup
   47  programs pursuant to s. 376.3071 or s. 376.3072.
   48         4. The site is not otherwise eligible for the Petroleum
   49  Cleanup Participation Program under s. 376.3071(13) based on any
   50  discharge reporting form received by the department before
   51  January 1, 1995, or a written report of contamination submitted
   52  to the department on or before December 31, 1998.
   53         (b) In order to be eligible for the program, petroleum
   54  storage systems from which a discharge occurred must be closed
   55  pursuant to department rules before an eligibility
   56  determination. However, if the department determines that the
   57  owner of the facility cannot financially comply with the
   58  department’s petroleum storage system closure requirements and
   59  all other eligibility requirements are met, the petroleum
   60  storage system closure requirements shall be waived. The
   61  department shall take into consideration the owner’s net worth
   62  and the economic impact on the owner in making the determination
   63  of the owner’s financial ability. The June 30, 1996, application
   64  deadline shall be waived for owners who cannot financially
   65  comply.
   66         (c) Sites accepted in the program are eligible for site
   67  rehabilitation funding as provided in s. 376.3071.
   68         (d) The following sites are excluded from eligibility:
   69         1. Sites on property of the Federal Government;
   70         2. Sites contaminated by pollutants that are not petroleum
   71  products; or
   72         3. Sites where the department has been denied site access;
   73  or
   74         4. Sites which are owned by a person who had knowledge of
   75  the polluting condition when title was acquired unless the
   76  person acquired title to the site after issuance of a notice of
   77  site eligibility by the department.
   78         (e) Participating sites are subject to a deductible as
   79  determined by rule, not to exceed $10,000.
   80  
   81  This subsection does not relieve a person who has acquired title
   82  after July 1, 1992, from the duty to establish by a
   83  preponderance of the evidence that he or she undertook, at the
   84  time of acquisition, all appropriate inquiry into the previous
   85  ownership and use of the property consistent with good
   86  commercial or customary practice in an effort to minimize
   87  liability, as required by s. 376.308(1)(c).
   88         Section 2. Paragraph (b) of subsection (12), and subsection
   89  (13) of section 376.3071, Florida Statutes, are amended, and
   90  paragraph (c) is added to subsection (12) of that section, to
   91  read:
   92         376.3071 Inland Protection Trust Fund; creation; purposes;
   93  funding.—
   94         (12) SITE CLEANUP.—
   95         (b) Low-risk Low-scored site initiative.—Notwithstanding
   96  subsections (5) and (6), a site with a priority ranking score of
   97  29 points or less may voluntarily participate in the low-risk
   98  low-scored site initiative regardless of whether the site is
   99  eligible for state restoration funding.
  100         1. To participate in the low-risk low-scored site
  101  initiative, the responsible party or property owner, or a
  102  responsible party that provides evidence of authorization from
  103  the property owner, must submit a “No Further Action” proposal
  104  and affirmatively demonstrate that the following conditions
  105  under paragraph (c) are met.:
  106         a. Upon reassessment pursuant to department rule, the site
  107  retains a priority ranking score of 29 points or less.
  108         b. Excessively contaminated soil, as defined by department
  109  rule, does not exist onsite as a result of a release of
  110  petroleum products.
  111         c. A minimum of 6 months of groundwater monitoring
  112  indicates that the plume is shrinking or stable.
  113         d. The release of petroleum products at the site does not
  114  adversely affect adjacent surface waters, including their
  115  effects on human health and the environment.
  116         e. The area of groundwater containing the petroleum
  117  products’ chemicals of concern is less than one-quarter acre and
  118  is confined to the source property boundaries of the real
  119  property on which the discharge originated.
  120         f. Soils onsite that are subject to human exposure found
  121  between land surface and 2 feet below land surface meet the soil
  122  cleanup target levels established by department rule or human
  123  exposure is limited by appropriate institutional or engineering
  124  controls.
  125         2. Upon affirmative demonstration that of the conditions
  126  under paragraph (c) are met subparagraph 1., the department
  127  shall issue a site rehabilitation completion order incorporating
  128  the determination of “No Further Action.proposal submitted by
  129  the property owner or the responsible party that provides
  130  evidence of the authorization from the property owner Such
  131  determination acknowledges that minimal contamination exists
  132  onsite and that such contamination is not a threat to the public
  133  health, safety, or welfare, water resources, or the environment.
  134  If no contamination is detected, the department may issue a site
  135  rehabilitation completion order.
  136         3. Sites that are eligible for state restoration funding
  137  may receive payment of costs for the low-risk low-scored site
  138  initiative as follows:
  139         a. A responsible party or property owner, or a responsible
  140  party that provides evidence of authorization from the property
  141  owner, may submit an assessment and limited remediation plan
  142  designed to affirmatively demonstrate that the site meets the
  143  conditions under paragraph (c) subparagraph 1. Notwithstanding
  144  the priority ranking score of the site, the department may
  145  approve the cost of the assessment and limited remediation,
  146  including up to 6 months of groundwater monitoring, in one or
  147  more task assignments, or modifications thereof, not to exceed
  148  the threshold amount provided in s. 287.017 for CATEGORY TWO,
  149  $30,000 for each site where the department has determined that
  150  the assessment and limited remediation, if applicable, will
  151  likely result in a determination of “No Further Action.”. The
  152  department may not pay the costs associated with the
  153  establishment of institutional or engineering controls, with the
  154  exception of the costs associated with a professional land
  155  survey or specific purpose survey, if needed, and costs
  156  associated with obtaining a title report and recording fees.
  157         b. Following approval of initial site assessment results
  158  provided pursuant to state funding under sub-subparagraph a.,
  159  the department may approve up to an additional amount not to
  160  exceed the threshold amount provided in s. 287.017 for CATEGORY
  161  TWO, for limited remediation, where needed to achieve a
  162  determination of “No Further Action.
  163         c.b. The assessment and limited remediation work shall be
  164  completed no later than 9 6 months after the department
  165  authorizes the start of a state-funded low-risk site initiative
  166  task issues its approval. If groundwater monitoring is required
  167  after the assessment and limited remediation in order to satisfy
  168  the conditions under paragraph (c), the department may authorize
  169  an additional 6 months to complete the monitoring.
  170         d.c. No more than $15 $10 million for the low-risk low
  171  scored site initiative may be encumbered from the fund in any
  172  fiscal year. Funds shall be made available on a first-come,
  173  first-served basis and shall be limited to 10 sites in each
  174  fiscal year for each responsible party or property owner or each
  175  responsible party that provides evidence of authorization from
  176  the property owner.
  177         e.d. Program deductibles, copayments, and the limited
  178  contamination assessment report requirements under paragraph
  179  (13)(c) do not apply to expenditures under this paragraph.
  180         (c) The department shall issue a site rehabilitation
  181  completion order incorporating the “No Further Action” proposal
  182  submitted by a property owner or a responsible party that
  183  provides evidence of authorization from the property owner upon
  184  affirmative demonstration that all of the following conditions
  185  are met:
  186         1. Soil saturated with petroleum or petroleum products, or
  187  soil that causes a total corrected hydrocarbon measurement of
  188  500 parts per million or higher for Gasoline Analytical Group or
  189  50 parts per million or higher for Kerosene Analytical Group, as
  190  defined by department rule, does not exist onsite as a result of
  191  a release of petroleum products.
  192         2. A minimum of 6 months of groundwater monitoring
  193  indicates that the plume is shrinking or stable.
  194         3. The release of petroleum products at the site does not
  195  adversely affect adjacent surface waters, including their
  196  effects on human health and the environment.
  197         4. The area of groundwater containing the petroleum
  198  products’ chemicals of concern is confined to the source
  199  property boundaries of the real property on which the discharge
  200  originated, or has migrated from the source property only to a
  201  transportation facility of the Department of Transportation.
  202         5. The groundwater contamination containing the petroleum
  203  products chemicals of concern is not a threat to any permitted
  204  potable water supply well.
  205         6. Soils onsite which are subject to human exposure found
  206  between land surface and 2 feet below land surface meet the soil
  207  cleanup target levels established pursuant to subparagraph
  208  (5)(b)9., or human exposure is limited by appropriate
  209  institutional or engineering controls.
  210  
  211  Issuance of a site rehabilitation completion order under this
  212  paragraph acknowledges that minimal contamination exists onsite
  213  and that such contamination is not a threat to the public
  214  health, safety, or welfare, water resources, or the environment.
  215  If the department determines that a discharge for which a site
  216  rehabilitation completion order was issued pursuant to this
  217  subsection may pose a threat to the public health, safety, or
  218  welfare, water resources, or the environment, the issuance of
  219  the site rehabilitation completion order, with or without
  220  conditions, does not alter eligibility for state-funded
  221  rehabilitation that would otherwise be applicable under this
  222  section.
  223         (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
  224  detection, reporting, and cleanup of contamination caused by
  225  discharges of petroleum or petroleum products, the department
  226  shall, within the guidelines established in this subsection,
  227  implement a cost-sharing cleanup program to provide
  228  rehabilitation funding assistance for all property contaminated
  229  by discharges of petroleum or petroleum products from a
  230  petroleum storage system occurring before January 1, 1995,
  231  subject to a copayment provided for in a Petroleum Cleanup
  232  Participation Program site rehabilitation agreement. Eligibility
  233  is subject to an annual appropriation from the fund.
  234  Additionally, funding for eligible sites is contingent upon
  235  annual appropriation in subsequent years. Such continued state
  236  funding is not an entitlement or a vested right under this
  237  subsection. Eligibility shall be determined in the program,
  238  notwithstanding any other provision of law, consent order,
  239  order, judgment, or ordinance to the contrary.
  240         (a)1. The department shall accept any discharge reporting
  241  form received before January 1, 1995, as an application for this
  242  program, and the facility owner or operator need not reapply.
  243         2. Owners or operators of property, regardless of whether
  244  ownership has changed, which is contaminated by petroleum or
  245  petroleum products from a petroleum storage system may apply for
  246  such program by filing a written report of the contamination
  247  incident, including evidence that such incident occurred before
  248  January 1, 1995, with the department. Incidents of petroleum
  249  contamination discovered after December 31, 1994, at sites which
  250  have not stored petroleum or petroleum products for consumption,
  251  use, or sale after such date shall be presumed to have occurred
  252  before January 1, 1995. An operator’s filed report shall be an
  253  application of the owner for all purposes. Sites reported to the
  254  department after December 31, 1998, are not eligible for the
  255  program.
  256         (b) Subject to annual appropriation from the fund, sites
  257  meeting the criteria of this subsection are eligible for up to
  258  $400,000 of site rehabilitation funding assistance in priority
  259  order pursuant to subsections (5) and (6). Sites meeting the
  260  criteria of this subsection for which a site rehabilitation
  261  completion order was issued before June 1, 2008, do not qualify
  262  for the 2008 increase in site rehabilitation funding assistance
  263  and are bound by the pre-June 1, 2008, limits. Sites meeting the
  264  criteria of this subsection for which a site rehabilitation
  265  completion order was not issued before June 1, 2008, regardless
  266  of whether they have previously transitioned to nonstate-funded
  267  cleanup status, may continue state-funded cleanup pursuant to
  268  this section until a site rehabilitation completion order is
  269  issued or the increased site rehabilitation funding assistance
  270  limit is reached, whichever occurs first. The department may not
  271  pay expenses incurred beyond the scope of an approved contract.
  272         (c) Upon notification by the department that rehabilitation
  273  funding assistance is available for the site pursuant to
  274  subsections (5) and (6), the owner, operator, or person
  275  otherwise responsible for site rehabilitation shall provide the
  276  department with a limited contamination assessment report and
  277  shall enter into a Petroleum Cleanup Participation Program site
  278  rehabilitation agreement with the department. The agreement must
  279  provide for a 25-percent copayment by the owner, operator, or
  280  person otherwise responsible for conducting site rehabilitation.
  281  The owner, operator, or person otherwise responsible for
  282  conducting site rehabilitation shall adequately demonstrate the
  283  ability to meet the copayment obligation. The limited
  284  contamination assessment report and the copayment costs may be
  285  reduced or eliminated if the owner and all operators responsible
  286  for restoration under s. 376.308 demonstrate that they cannot
  287  financially comply with the copayment and limited contamination
  288  assessment report requirements. The department shall take into
  289  consideration the owner’s and operator’s net worth in making the
  290  determination of financial ability. In the event the department
  291  and the owner, operator, or person otherwise responsible for
  292  site rehabilitation cannot complete negotiation of the cost
  293  sharing agreement within 120 days after beginning negotiations,
  294  the department shall terminate negotiations and the site shall
  295  be ineligible for state funding under this subsection and all
  296  liability protections provided for in this subsection shall be
  297  revoked.
  298         (d) A report of a discharge made to the department by a
  299  person pursuant to this subsection or any rules adopted pursuant
  300  to this subsection may not be used directly as evidence of
  301  liability for such discharge in any civil or criminal trial
  302  arising out of the discharge.
  303         (e) This subsection does not preclude the department from
  304  pursuing penalties under s. 403.141 for violations of any law or
  305  any rule, order, permit, registration, or certification adopted
  306  or issued by the department pursuant to its lawful authority.
  307         (f) Upon the filing of a discharge reporting form under
  308  paragraph (a), the department or local government may not pursue
  309  any judicial or enforcement action to compel rehabilitation of
  310  the discharge. This paragraph does not prevent any such action
  311  with respect to discharges determined ineligible under this
  312  subsection or to sites for which rehabilitation funding
  313  assistance is available pursuant to subsections (5) and (6).
  314         (g) The following are excluded from participation in the
  315  program:
  316         1. Sites at which the department has been denied reasonable
  317  site access to implement this section.
  318         2. Sites that were active facilities when owned or operated
  319  by the Federal Government.
  320         3. Sites that are identified by the United States
  321  Environmental Protection Agency to be on, or which qualify for
  322  listing on, the National Priorities List under Superfund. This
  323  exception does not apply to those sites for which eligibility
  324  has been requested or granted as of the effective date of this
  325  act under the Early Detection Incentive Program established
  326  pursuant to s. 15, chapter 86-159, Laws of Florida.
  327         4. Sites for which contamination is covered under the Early
  328  Detection Incentive Program, the Abandoned Tank Restoration
  329  Program, or the Petroleum Liability and Restoration Insurance
  330  Program, in which case site rehabilitation funding assistance
  331  shall continue under the respective program.
  332         Section 3. Paragraph (a) of subsection (2) and subsection
  333  (4) of section 376.30713, Florida Statutes, are amended to read:
  334         376.30713 Advanced cleanup.—
  335         (2) The department may approve an application for advanced
  336  cleanup at eligible sites, before funding based on the site’s
  337  priority ranking established pursuant to s. 376.3071(5)(a),
  338  pursuant to this section. Only the facility owner or operator or
  339  the person otherwise responsible for site rehabilitation
  340  qualifies as an applicant under this section.
  341         (a) Advanced cleanup applications may be submitted between
  342  May 1 and June 30 and between November 1 and December 31 of each
  343  fiscal year. Applications submitted between May 1 and June 30
  344  shall be for the fiscal year beginning July 1. An application
  345  must consist of:
  346         1. A commitment to pay 25 percent or more of the total
  347  cleanup cost deemed recoverable under this section along with
  348  proof of the ability to pay the cost share. An application
  349  proposing that the department enter into a performance-based
  350  contract for the cleanup of 10 20 or more sites may use a
  351  commitment to pay, a demonstrated cost savings to the
  352  department, or both to meet the cost-share requirement. For an
  353  application relying on a demonstrated cost savings to the
  354  department, the applicant shall, in conjunction with the
  355  proposed agency term contractor, establish and provide in the
  356  application the percentage of cost savings in the aggregate that
  357  is being provided to the department for cleanup of the sites
  358  under the application compared to the cost of cleanup of those
  359  same sites using the current rates provided to the department by
  360  the proposed agency term contractor. The department shall
  361  determine whether the cost savings demonstration is acceptable.
  362  Such determination is not subject to chapter 120.
  363         2. A nonrefundable review fee of $250 to cover the
  364  administrative costs associated with the department’s review of
  365  the application.
  366         3. A limited contamination assessment report.
  367         4. A proposed course of action.
  368  
  369  The limited contamination assessment report must be sufficient
  370  to support the proposed course of action and to estimate the
  371  cost of the proposed course of action. Costs incurred related to
  372  conducting the limited contamination assessment report are not
  373  refundable from the Inland Protection Trust Fund. Site
  374  eligibility under this subsection or any other provision of this
  375  section is not an entitlement to advanced cleanup or continued
  376  restoration funding. The applicant shall certify to the
  377  department that the applicant has the prerequisite authority to
  378  enter into an advanced cleanup contract with the department. The
  379  certification must be submitted with the application.
  380         (4) The department may enter into contracts for a total of
  381  up to $25 $15 million of advanced cleanup work in each fiscal
  382  year. However, a facility or an applicant who bundles multiple
  383  sites as specified in subparagraph (2)(a)1. may not be approved
  384  for more than $5 million of cleanup activity in each fiscal
  385  year. A property owner or responsible party may enter into a
  386  voluntary cost-share agreement in which the property owner or
  387  responsible party commits to bundle multiple sites and lists the
  388  facilities that will be included in those future bundles. The
  389  facilities listed are not subject to agency term contractor
  390  assignment pursuant to department rule. The department reserves
  391  the right to terminate the voluntary cost-share agreement if the
  392  property owner or responsible party fails to submit an
  393  application to bundle multiple sites within an open application
  394  period in which it is eligible to participate. For the purposes
  395  of this section, the term “facility” includes, but is not
  396  limited to, multiple site facilities such as airports, port
  397  facilities, and terminal facilities even though such enterprises
  398  may be treated as separate facilities for other purposes under
  399  this chapter.
  400         Section 4. This act shall take effect July 1, 2015.