Florida Senate - 2015                          SENATOR AMENDMENT
       Bill No. CS for HB 733
       
       
       
       
       
       
                                Ì773672:Î773672                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: PD/2R          .                                
             04/28/2015 01:13 PM       .                                
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       Senator Simpson moved 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         4. The site is not otherwise eligible for the Petroleum
   29  Cleanup Participation Program under s. 376.3071(13) based on any
   30  discharge reporting form received by the department before
   31  January 1, 1995, or a written report of contamination submitted
   32  to the department on or before December 31, 1998.
   33         (b) In order to be eligible for the program, petroleum
   34  storage systems from which a discharge occurred must be closed
   35  pursuant to department rules before an eligibility
   36  determination. However, if the department determines that the
   37  owner of the facility cannot financially comply with the
   38  department’s petroleum storage system closure requirements and
   39  all other eligibility requirements are met, the petroleum
   40  storage system closure requirements shall be waived. The
   41  department shall take into consideration the owner’s net worth
   42  and the economic impact on the owner in making the determination
   43  of the owner’s financial ability. The June 30, 1996, application
   44  deadline shall be waived for owners who cannot financially
   45  comply.
   46         (c) Sites accepted in the program are eligible for site
   47  rehabilitation funding as provided in s. 376.3071.
   48         (d) The following sites are excluded from eligibility:
   49         1. Sites on property of the Federal Government;
   50         2. Sites contaminated by pollutants that are not petroleum
   51  products; or
   52         3. Sites where the department has been denied site access;
   53  or
   54         4. Sites which are owned by a person who had knowledge of
   55  the polluting condition when title was acquired unless the
   56  person acquired title to the site after issuance of a notice of
   57  site eligibility by the department.
   58         (e) Participating sites are subject to a deductible as
   59  determined by rule, not to exceed $10,000.
   60  
   61  This subsection does not relieve a person who has acquired title
   62  after July 1, 1992, from the duty to establish by a
   63  preponderance of the evidence that he or she undertook, at the
   64  time of acquisition, all appropriate inquiry into the previous
   65  ownership and use of the property consistent with good
   66  commercial or customary practice in an effort to minimize
   67  liability, as required by s. 376.308(1)(c).
   68         Section 2. Paragraph (b) of subsection (12), and subsection
   69  (13) of section 376.3071, Florida Statutes, are amended, and
   70  paragraph (c) is added to subsection (12) of that section, to
   71  read:
   72         376.3071 Inland Protection Trust Fund; creation; purposes;
   73  funding.—
   74         (12) SITE CLEANUP.—
   75         (b) Low-risk Low-scored site initiative.—Notwithstanding
   76  subsections (5) and (6), a site with a priority ranking score of
   77  29 points or less may voluntarily participate in the low-risk
   78  low-scored site initiative regardless of whether the site is
   79  eligible for state restoration funding.
   80         1. To participate in the low-risk low-scored site
   81  initiative, the responsible party or property owner, or a
   82  responsible party that provides evidence of authorization from
   83  the property owner, must submit a “No Further Action” proposal
   84  and affirmatively demonstrate that the following conditions
   85  under paragraph (c) are met.:
   86         a. Upon reassessment pursuant to department rule, the site
   87  retains a priority ranking score of 29 points or less.
   88         b. Excessively contaminated soil, as defined by department
   89  rule, does not exist onsite as a result of a release of
   90  petroleum products.
   91         c. A minimum of 6 months of groundwater monitoring
   92  indicates that the plume is shrinking or stable.
   93         d. The release of petroleum products at the site does not
   94  adversely affect adjacent surface waters, including their
   95  effects on human health and the environment.
   96         e. The area of groundwater containing the petroleum
   97  products’ chemicals of concern is less than one-quarter acre and
   98  is confined to the source property boundaries of the real
   99  property on which the discharge originated.
  100         f. Soils onsite that are subject to human exposure found
  101  between land surface and 2 feet below land surface meet the soil
  102  cleanup target levels established by department rule or human
  103  exposure is limited by appropriate institutional or engineering
  104  controls.
  105         2. Upon affirmative demonstration that of the conditions
  106  under paragraph (c) are met subparagraph 1., the department
  107  shall issue a site rehabilitation completion order incorporating
  108  the determination of “No Further Action.proposal submitted by
  109  the property owner or the responsible party that provides
  110  evidence of the authorization from the property owner Such
  111  determination acknowledges that minimal contamination exists
  112  onsite and that such contamination is not a threat to the public
  113  health, safety, or welfare, water resources, or the environment.
  114  If no contamination is detected, the department may issue a site
  115  rehabilitation completion order.
  116         3. Sites that are eligible for state restoration funding
  117  may receive payment of costs for the low-risk low-scored site
  118  initiative as follows:
  119         a. A responsible party or property owner, or a responsible
  120  party that provides evidence of authorization from the property
  121  owner, may submit an assessment and limited remediation plan
  122  designed to affirmatively demonstrate that the site meets the
  123  conditions under paragraph (c) subparagraph 1. Notwithstanding
  124  the priority ranking score of the site, the department may
  125  approve the cost of the assessment and limited remediation,
  126  including up to 6 months of groundwater monitoring, in one or
  127  more task assignments, or modifications thereof, not to exceed
  128  the threshold amount provided in s. 287.017 for CATEGORY TWO,
  129  $30,000 for each site where the department has determined that
  130  the assessment and limited remediation, if applicable, will
  131  likely result in a determination of “No Further Action.”. The
  132  department may not pay the costs associated with the
  133  establishment of institutional or engineering controls, with the
  134  exception of the costs associated with a professional land
  135  survey or specific purpose survey, if needed, and costs
  136  associated with obtaining a title report and recording fees.
  137         b. Following approval of initial site assessment results
  138  provided pursuant to state funding under sub-subparagraph a.,
  139  the department may approve up to an additional amount not to
  140  exceed the threshold amount provided in s. 287.017 for CATEGORY
  141  TWO, for limited remediation, where needed to achieve a
  142  determination of “No Further Action.
  143         c.b. The assessment and limited remediation work shall be
  144  completed no later than 9 6 months after the department
  145  authorizes the start of a state-funded low-risk site initiative
  146  task issues its approval. If groundwater monitoring is required
  147  after the assessment and limited remediation in order to satisfy
  148  the conditions under paragraph (c), the department may authorize
  149  an additional 6 months to complete the monitoring.
  150         d.c. No more than $15 $10 million for the low-risk low
  151  scored site initiative may be encumbered from the fund in any
  152  fiscal year. Funds shall be made available on a first-come,
  153  first-served basis and shall be limited to 10 sites in each
  154  fiscal year for each responsible party or property owner or each
  155  responsible party that provides evidence of authorization from
  156  the property owner.
  157         e.d. Program deductibles, copayments, and the limited
  158  contamination assessment report requirements under paragraph
  159  (13)(c) do not apply to expenditures under this paragraph.
  160         (c) The department shall issue a site rehabilitation
  161  completion order incorporating the “No Further Action” proposal
  162  submitted by a property owner or a responsible party that
  163  provides evidence of authorization from the property owner upon
  164  affirmative demonstration that all of the following conditions
  165  are met:
  166         1. Soil saturated with petroleum or petroleum products, or
  167  soil that causes a total corrected hydrocarbon measurement of
  168  500 parts per million or higher for Gasoline Analytical Group or
  169  50 parts per million or higher for Kerosene Analytical Group, as
  170  defined by department rule, does not exist onsite as a result of
  171  a release of petroleum products.
  172         2. A minimum of 6 months of groundwater monitoring
  173  indicates that the plume is shrinking or stable.
  174         3. The release of petroleum products at the site does not
  175  adversely affect adjacent surface waters, including their
  176  effects on human health and the environment.
  177         4. The area of groundwater containing the petroleum
  178  products’ chemicals of concern is confined to the source
  179  property boundaries of the real property on which the discharge
  180  originated, or has migrated from the source property only to a
  181  transportation facility of the Department of Transportation.
  182         5. The groundwater contamination containing the petroleum
  183  products chemicals of concern is not a threat to any permitted
  184  potable water supply well.
  185         6. Soils onsite which are subject to human exposure found
  186  between land surface and 2 feet below land surface meet the soil
  187  cleanup target levels established pursuant to subparagraph
  188  (5)(b)9., or human exposure is limited by appropriate
  189  institutional or engineering controls.
  190  
  191  Issuance of a site rehabilitation completion order under this
  192  paragraph acknowledges that minimal contamination exists onsite
  193  and that such contamination is not a threat to the public
  194  health, safety, or welfare, water resources, or the environment.
  195  If the department determines that a discharge for which a site
  196  rehabilitation completion order was issued pursuant to this
  197  subsection may pose a threat to the public health, safety, or
  198  welfare, water resources, or the environment, the issuance of
  199  the site rehabilitation completion order, with or without
  200  conditions, does not alter eligibility for state-funded
  201  rehabilitation that would otherwise be applicable under this
  202  section.
  203         (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
  204  detection, reporting, and cleanup of contamination caused by
  205  discharges of petroleum or petroleum products, the department
  206  shall, within the guidelines established in this subsection,
  207  implement a cost-sharing cleanup program to provide
  208  rehabilitation funding assistance for all property contaminated
  209  by discharges of petroleum or petroleum products from a
  210  petroleum storage system occurring before January 1, 1995,
  211  subject to a copayment provided for in a Petroleum Cleanup
  212  Participation Program site rehabilitation agreement. Eligibility
  213  is subject to an annual appropriation from the fund.
  214  Additionally, funding for eligible sites is contingent upon
  215  annual appropriation in subsequent years. Such continued state
  216  funding is not an entitlement or a vested right under this
  217  subsection. Eligibility shall be determined in the program,
  218  notwithstanding any other provision of law, consent order,
  219  order, judgment, or ordinance to the contrary.
  220         (a)1. The department shall accept any discharge reporting
  221  form received before January 1, 1995, as an application for this
  222  program, and the facility owner or operator need not reapply.
  223         2. Owners or operators of property, regardless of whether
  224  ownership has changed, which is contaminated by petroleum or
  225  petroleum products from a petroleum storage system may apply for
  226  such program by filing a written report of the contamination
  227  incident, including evidence that such incident occurred before
  228  January 1, 1995, with the department. Incidents of petroleum
  229  contamination discovered after December 31, 1994, at sites which
  230  have not stored petroleum or petroleum products for consumption,
  231  use, or sale after such date shall be presumed to have occurred
  232  before January 1, 1995. An operator’s filed report shall be an
  233  application of the owner for all purposes. Sites reported to the
  234  department after December 31, 1998, are not eligible for the
  235  program.
  236         (b) Subject to annual appropriation from the fund, sites
  237  meeting the criteria of this subsection are eligible for up to
  238  $400,000 of site rehabilitation funding assistance in priority
  239  order pursuant to subsections (5) and (6). Sites meeting the
  240  criteria of this subsection for which a site rehabilitation
  241  completion order was issued before June 1, 2008, do not qualify
  242  for the 2008 increase in site rehabilitation funding assistance
  243  and are bound by the pre-June 1, 2008, limits. Sites meeting the
  244  criteria of this subsection for which a site rehabilitation
  245  completion order was not issued before June 1, 2008, regardless
  246  of whether they have previously transitioned to nonstate-funded
  247  cleanup status, may continue state-funded cleanup pursuant to
  248  this section until a site rehabilitation completion order is
  249  issued or the increased site rehabilitation funding assistance
  250  limit is reached, whichever occurs first. The department may not
  251  pay expenses incurred beyond the scope of an approved contract.
  252         (c) Upon notification by the department that rehabilitation
  253  funding assistance is available for the site pursuant to
  254  subsections (5) and (6), the owner, operator, or person
  255  otherwise responsible for site rehabilitation shall provide the
  256  department with a limited contamination assessment report and
  257  shall enter into a Petroleum Cleanup Participation Program site
  258  rehabilitation agreement with the department. The agreement must
  259  provide for a 25-percent copayment by the owner, operator, or
  260  person otherwise responsible for conducting site rehabilitation.
  261  The owner, operator, or person otherwise responsible for
  262  conducting site rehabilitation shall adequately demonstrate the
  263  ability to meet the copayment obligation. The limited
  264  contamination assessment report and the copayment costs may be
  265  reduced or eliminated if the owner and all operators responsible
  266  for restoration under s. 376.308 demonstrate that they cannot
  267  financially comply with the copayment and limited contamination
  268  assessment report requirements. The department shall take into
  269  consideration the owner’s and operator’s net worth in making the
  270  determination of financial ability. In the event the department
  271  and the owner, operator, or person otherwise responsible for
  272  site rehabilitation cannot complete negotiation of the cost
  273  sharing agreement within 120 days after beginning negotiations,
  274  the department shall terminate negotiations and the site shall
  275  be ineligible for state funding under this subsection and all
  276  liability protections provided for in this subsection shall be
  277  revoked.
  278         (d) A report of a discharge made to the department by a
  279  person pursuant to this subsection or any rules adopted pursuant
  280  to this subsection may not be used directly as evidence of
  281  liability for such discharge in any civil or criminal trial
  282  arising out of the discharge.
  283         (e) This subsection does not preclude the department from
  284  pursuing penalties under s. 403.141 for violations of any law or
  285  any rule, order, permit, registration, or certification adopted
  286  or issued by the department pursuant to its lawful authority.
  287         (f) Upon the filing of a discharge reporting form under
  288  paragraph (a), the department or local government may not pursue
  289  any judicial or enforcement action to compel rehabilitation of
  290  the discharge. This paragraph does not prevent any such action
  291  with respect to discharges determined ineligible under this
  292  subsection or to sites for which rehabilitation funding
  293  assistance is available pursuant to subsections (5) and (6).
  294         (g) The following are excluded from participation in the
  295  program:
  296         1. Sites at which the department has been denied reasonable
  297  site access to implement this section.
  298         2. Sites that were active facilities when owned or operated
  299  by the Federal Government.
  300         3. Sites that are identified by the United States
  301  Environmental Protection Agency to be on, or which qualify for
  302  listing on, the National Priorities List under Superfund. This
  303  exception does not apply to those sites for which eligibility
  304  has been requested or granted as of the effective date of this
  305  act under the Early Detection Incentive Program established
  306  pursuant to s. 15, chapter 86-159, Laws of Florida.
  307         4. Sites for which contamination is covered under the Early
  308  Detection Incentive Program, the Abandoned Tank Restoration
  309  Program, or the Petroleum Liability and Restoration Insurance
  310  Program, in which case site rehabilitation funding assistance
  311  shall continue under the respective program.
  312         Section 3. Paragraph (a) of subsection (2) and subsection
  313  (4) of section 376.30713, Florida Statutes, are amended to read:
  314         376.30713 Advanced cleanup.—
  315         (2) The department may approve an application for advanced
  316  cleanup at eligible sites, before funding based on the site’s
  317  priority ranking established pursuant to s. 376.3071(5)(a),
  318  pursuant to this section. Only the facility owner or operator or
  319  the person otherwise responsible for site rehabilitation
  320  qualifies as an applicant under this section.
  321         (a) Advanced cleanup applications may be submitted between
  322  May 1 and June 30 and between November 1 and December 31 of each
  323  fiscal year. Applications submitted between May 1 and June 30
  324  shall be for the fiscal year beginning July 1. An application
  325  must consist of:
  326         1. A commitment to pay 25 percent or more of the total
  327  cleanup cost deemed recoverable under this section along with
  328  proof of the ability to pay the cost share. An application
  329  proposing that the department enter into a performance-based
  330  contract for the cleanup of 10 20 or more sites may use a
  331  commitment to pay, a demonstrated cost savings to the
  332  department, or both to meet the cost-share requirement. For an
  333  application relying on a demonstrated cost savings to the
  334  department, the applicant shall, in conjunction with the
  335  proposed agency term contractor, establish and provide in the
  336  application the percentage of cost savings in the aggregate that
  337  is being provided to the department for cleanup of the sites
  338  under the application compared to the cost of cleanup of those
  339  same sites using the current rates provided to the department by
  340  the proposed agency term contractor. The department shall
  341  determine whether the cost savings demonstration is acceptable.
  342  Such determination is not subject to chapter 120.
  343         2. A nonrefundable review fee of $250 to cover the
  344  administrative costs associated with the department’s review of
  345  the application.
  346         3. A limited contamination assessment report.
  347         4. A proposed course of action.
  348  
  349  The limited contamination assessment report must be sufficient
  350  to support the proposed course of action and to estimate the
  351  cost of the proposed course of action. Costs incurred related to
  352  conducting the limited contamination assessment report are not
  353  refundable from the Inland Protection Trust Fund. Site
  354  eligibility under this subsection or any other provision of this
  355  section is not an entitlement to advanced cleanup or continued
  356  restoration funding. The applicant shall certify to the
  357  department that the applicant has the prerequisite authority to
  358  enter into an advanced cleanup contract with the department. The
  359  certification must be submitted with the application.
  360         (4) The department may enter into contracts for a total of
  361  up to $25 $15 million of advanced cleanup work in each fiscal
  362  year. However, a facility or an applicant who bundles multiple
  363  sites as specified in subparagraph (2)(a)1. may not be approved
  364  for more than $5 million of cleanup activity in each fiscal
  365  year. A property owner or responsible party may enter into a
  366  voluntary cost-share agreement in which the property owner or
  367  responsible party commits to bundle multiple sites and lists the
  368  facilities that will be included in those future bundles. The
  369  facilities listed are not subject to agency term contractor
  370  assignment pursuant to department rule. The department reserves
  371  the right to terminate the voluntary cost-share agreement if the
  372  property owner or responsible party fails to submit an
  373  application to bundle multiple sites within an open application
  374  period in which it is eligible to participate. For the purposes
  375  of this section, the term “facility” includes, but is not
  376  limited to, multiple site facilities such as airports, port
  377  facilities, and terminal facilities even though such enterprises
  378  may be treated as separate facilities for other purposes under
  379  this chapter.
  380         Section 4. This act shall take effect July 1, 2015.
  381  
  382  ================= T I T L E  A M E N D M E N T ================
  383  And the title is amended as follows:
  384         Delete everything before the enacting clause
  385  and insert:
  386                        A bill to be entitled                      
  387         An act relating to the Petroleum Restoration Program;
  388         amending s. 376.305, F.S.; revising the eligibility
  389         requirements of the Abandoned Tank Restoration
  390         Program; deleting provisions prohibiting the relief of
  391         liability for persons who acquired title after a
  392         certain date; amending s. 376.3071, F.S.; renaming the
  393         low-scored site initiative the low-risk site
  394         initiative; revising the conditions for eligibility
  395         and methods for payment of costs for the low-risk site
  396         initiative; clarifying that a change in ownership does
  397         not preclude a site from entering into the program;
  398         revising the eligibility requirements for receiving
  399         rehabilitation funding; amending s. 376.30713, F.S.;
  400         reducing the number of sites that may be proposed for
  401         certain advanced cleanup applications; increasing the
  402         total amount for which the department may contract for
  403         advanced cleanup work in a fiscal year; authorizing
  404         property owners and responsible parties to enter into
  405         voluntary cost-share agreements under certain
  406         circumstances; providing an effective date.