Bill Text: FL S0100 | 2016 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Pollution Discharge Removal and Prevention
Spectrum: Bipartisan Bill
Status: (Passed) 2016-04-06 - Chapter No. 2016-184 [S0100 Detail]
Download: Florida-2016-S0100-Introduced.html
Bill Title: Pollution Discharge Removal and Prevention
Spectrum: Bipartisan Bill
Status: (Passed) 2016-04-06 - Chapter No. 2016-184 [S0100 Detail]
Download: Florida-2016-S0100-Introduced.html
Florida Senate - 2016 SB 100 By Senator Simpson 18-00070-16 2016100__ 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 8 “the low-scored site initiative” as “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; revising the eligibility requirements for 12 receiving rehabilitation funding; clarifying that a 13 change in ownership does not preclude a site from 14 entering into the program; amending s. 376.30713, 15 F.S.; reducing the number of sites that may be 16 proposed for certain advanced cleanup applications; 17 increasing the total amount for which the department 18 may contract for advanced cleanup work in a fiscal 19 year; authorizing property owners and responsible 20 parties to enter into voluntary cost-share agreements 21 under certain circumstances; providing an effective 22 date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Subsection (6) of section 376.305, Florida 27 Statutes, is amended to read: 28 376.305 Removal of prohibited discharges.— 29 (6) The Legislature created the Abandoned Tank Restoration 30 Program in response to the need to provide financial assistance 31 for cleanup of sites that have abandoned petroleum storage 32 systems. For purposes of this subsection, the term “abandoned 33 petroleum storage system” means a petroleum storage system that 34 has not stored petroleum products for consumption, use, or sale 35 since March 1, 1990. The department shall establish the 36 Abandoned Tank Restoration Program to facilitate the restoration 37 of sites contaminated by abandoned petroleum storage systems. 38 (a) To be included in the program: 39 1. An application must be submitted to the departmentby40June 30, 1996,certifying that the system has not stored 41 petroleum products for consumption, use, or sale at the facility 42 since March 1, 1990. 43 2. The owner or operator of the petroleum storage system 44 when it was in service must have ceased conducting business 45 involving consumption, use, or sale of petroleum products at 46 that facility on or before March 1, 1990. 47 3. The site is not otherwise eligible for the cleanup 48 programs pursuant tos. 376.3071 ors. 376.3072. 49 4. The site is not otherwise eligible for the Petroleum 50 Cleanup Participation Program under s. 376.3071(13) based on any 51 discharge reporting form received by the department before 52 January 1, 1995, or a written report of contamination submitted 53 to the department on or before December 31, 1998. 54 (b) In order to be eligible for the program, petroleum 55 storage systems from which a discharge occurred must be closed 56 pursuant to department rules before an eligibility 57 determination. However, if the department determines that the 58 owner of the facility cannot financially comply with the 59 department’s petroleum storage system closure requirements and 60 all other eligibility requirements are met, the petroleum 61 storage system closure requirements shall be waived. The 62 department shall take into consideration the owner’s net worth 63 and the economic impact on the owner in making the determination 64 of the owner’s financial ability.The June 30, 1996, application65deadline shall be waived for owners who cannot financially66comply.67 (c) Sites accepted in the program are eligible for site 68 rehabilitation funding as provided in s. 376.3071. 69 (d) The following sites are excluded from eligibility: 70 1. Sites on property of the Federal Government; 71 2. Sites contaminated by pollutants that are not petroleum 72 products; or 73 3. Sites where the department has been denied site access;74or754. Sites which are owned by a person who had knowledge of76the polluting condition when title was acquired unless the77person acquired title to the site after issuance of a notice of78site eligibility by the department. 79 (e) Participating sites are subject to a deductible as 80 determined by rule, not to exceed $10,000. 81 82This subsection does not relieve a person who has acquired title83after July 1, 1992, from the duty to establish by a84preponderance of the evidence that he or she undertook, at the85time of acquisition, all appropriate inquiry into the previous86ownership and use of the property consistent with good87commercial or customary practice in an effort to minimize88liability, as required by s. 376.308(1)(c).89 Section 2. Paragraph (b) of subsection (12) and subsection 90 (13) of section 376.3071, Florida Statutes, are amended, and 91 paragraph (c) is added to subsection (12) of that section, to 92 read: 93 376.3071 Inland Protection Trust Fund; creation; purposes; 94 funding.— 95 (12) SITE CLEANUP.— 96 (b) Low-riskLow-scoredsite initiative.—Notwithstanding 97 subsections (5) and (6), a sitewith a priority ranking score of9829 points or lessmay voluntarily participate in the low-risk 99low-scoredsite initiative regardless of whether the site is 100 eligible for state restoration funding. 101 1. To participate in the low-risklow-scoredsite 102 initiative, theresponsible party orproperty owner, or a 103 responsible party that provides evidence of authorization from 104 the property owner, must submit a “No Further Action” proposal 105 and affirmatively demonstrate that thefollowingconditions 106 under subparagraph 4. are met.:107a. Upon reassessment pursuant to department rule, the site108retains a priority ranking score of 29 points or less.109b. Excessively contaminated soil, as defined by department110rule, does not exist onsite as a result of a release of111petroleum products.112c. A minimum of 6 months of groundwater monitoring113indicates that the plume is shrinking or stable.114d. The release of petroleum products at the site does not115adversely affect adjacent surface waters, including their116effects on human health and the environment.117e. The area of groundwater containing the petroleum118products’ chemicals of concern is less than one-quarter acre and119is confined to the source property boundaries of the real120property on which the discharge originated.121f. Soils onsite that are subject to human exposure found122between land surface and 2 feet below land surface meet the soil123cleanup target levels established by department rule or human124exposure is limited by appropriate institutional or engineering125controls.126 2. Upon affirmative demonstration thatofthe conditions 127 under subparagraph 4. are metsubparagraph 1., the department 128 shall issue a site rehabilitation completion order incorporating 129 thedetermination of“No Further Action.” proposal submitted by 130 the property owner or the responsible party that provides 131 evidence of authorization from the property ownerSuch132determination acknowledges that minimal contamination exists133onsite and that such contamination is not a threat to the public134health, safety, or welfare, water resources, or the environment. 135 If no contamination is detected, the department may issue a site 136 rehabilitation completion order. 137 3. Sites that are eligible for state restoration funding 138 may receive payment of costs for the low-risklow-scoredsite 139 initiative as follows: 140 a. Aresponsible party orproperty owner, or a responsible 141 party that provides evidence of authorization from the property 142 owner, may submit an assessment and limited remediation plan 143 designed to affirmatively demonstrate that the site meets the 144 conditions under subparagraph 4subparagraph 1. Notwithstanding 145 the priority ranking score of the site, the department may 146 approve the cost of the assessment and limited remediation, 147 including up to 6 months of groundwater monitoring, in one or 148 more task assignments, or modifications thereof, not to exceed 149 the threshold amount provided in s. 287.017 for CATEGORY TWO, 150$30,000for each site where the department has determined that 151 the assessment and limited remediation, if applicable, will 152 likely result in a determination of “No Further Action.”.The 153 department may not pay the costs associated with the 154 establishment of institutional or engineering controls, with the 155 exception of the costs associated with a professional land 156 survey or specific purpose survey, if needed, and the costs 157 associated with obtaining a title report and paying recording 158 fees. 159 b. After the approval of initial site assessment results 160 provided pursuant to state funding under sub-subparagraph a., 161 the department may approve an additional amount not to exceed 162 the threshold amount provided in s. 287.017 for CATEGORY TWO for 163 limited remediation where needed to achieve a determination of 164 “No Further Action.” 165 c.b.The assessment and limited remediation work shall be 166 completed no later than 96months after the department 167 authorizes the start of a state-funded, low-risk site initiative 168 taskissues its approval. If groundwater monitoring is required 169 after the assessment and limited remediation in order to satisfy 170 the conditions under subparagraph 4., the department may 171 authorize an additional 6 months to complete the monitoring. 172 d.c.No more than $15$10million for the low-risklow173scoredsite initiative may be encumbered from the fund in any 174 fiscal year. Funds shall be made available on a first-come, 175 first-served basis and shall be limited to 10 sites in each 176 fiscal year for eachresponsible party orproperty owner or each 177 responsible party that provides evidence of authorization from 178 the property owner. 179 e.d.Program deductibles, copayments, and the limited 180 contamination assessment report requirements under paragraph 181 (13)(c) do not apply to expenditures under this paragraph. 182 4. The department shall issue a site rehabilitation 183 completion order incorporating the “No Further Action” proposal 184 submitted by a property owner or a responsible party that 185 provides evidence of authorization from the property owner upon 186 affirmative demonstration that all of the following conditions 187 are met: 188 a. Soil saturated with petroleum or petroleum products, or 189 soil that causes a total corrected hydrocarbon measurement of 190 500 parts per million or higher for Gasoline Analytical Group or 191 50 parts per million or higher for Kerosene Analytical Group, as 192 defined by department rule, does not exist onsite as a result of 193 a release of petroleum products. 194 b. A minimum of 6 months of groundwater monitoring 195 indicates that the plume is shrinking or stable. 196 c. The release of petroleum products at the site does not 197 adversely affect adjacent surface waters, including their 198 effects on human health and the environment. 199 d. The area of groundwater containing the petroleum 200 products’ chemicals of concern is confined to the source 201 property boundaries of the real property on which the discharge 202 originated, or has migrated from the source property to only a 203 transportation facility of the Department of Transportation. 204 e. The groundwater contamination containing the petroleum 205 products’ chemicals of concern is not a threat to any permitted 206 potable water supply well. 207 f. Soils onsite found between land surface and 2 feet below 208 land surface which are subject to human exposure meet the soil 209 cleanup target levels established in subparagraph (5)(b)9., or 210 human exposure is limited by appropriate institutional or 211 engineering controls. 212 213 Issuance of a site rehabilitation completion order under this 214 paragraph acknowledges that minimal contamination exists onsite 215 and that such contamination is not a threat to the public 216 health, safety, or welfare, water resources, or the environment. 217 If the department determines that a discharge for which a site 218 rehabilitation completion order was issued pursuant to this 219 paragraph may pose a threat to the public health, safety, or 220 welfare, water resources, or the environment, the issuance of 221 the site rehabilitation completion order, with or without 222 conditions, does not alter eligibility for state-funded 223 rehabilitation that would otherwise be applicable under this 224 section. 225 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage 226 detection, reporting, and cleanup of contamination caused by 227 discharges of petroleum or petroleum products, the department 228 shall, within the guidelines established in this subsection, 229 implement a cost-sharing cleanup program to provide 230 rehabilitation funding assistance for all property contaminated 231 by discharges of petroleum or petroleum products from a 232 petroleum storage system occurring before January 1, 1995, 233 subject to a copayment provided for in a Petroleum Cleanup 234 Participation Program site rehabilitation agreement. Eligibility 235 is subject to an annual appropriation from the fund. 236 Additionally, funding for eligible sites is contingent upon 237 annual appropriation in subsequent years. Such continued state 238 funding is not an entitlement or a vested right under this 239 subsection. Eligibility shall be determined in the program, 240 notwithstanding any other provision of law, consent order, 241 order, judgment, or ordinance to the contrary. 242 (a)1. The department shall accept any discharge reporting 243 form received before January 1, 1995, as an application for this 244 program, and the facility owner or operator need not reapply. 245 2. Owners or operators of property, regardless of whether 246 ownership has changed, which is contaminated by petroleum or 247 petroleum products from a petroleum storage system may apply for 248 such program by filing a written report of the contamination 249 incident, including evidence that such incident occurred before 250 January 1, 1995, with the department. Incidents of petroleum 251 contamination discovered after December 31, 1994, at sites which 252 have not stored petroleum or petroleum products for consumption, 253 use, or sale after such date shall be presumed to have occurred 254 before January 1, 1995. An operator’s filed report shall be an 255 application of the owner for all purposes.Sites reported to the256department after December 31, 1998, are not eligible for the257program.258 (b) Subject to annual appropriation from the fund, sites 259 meeting the criteria of this subsection are eligible for up to 260 $400,000 of site rehabilitation funding assistance in priority 261 order pursuant to subsections (5) and (6). Sites meeting the 262 criteria of this subsection for which a site rehabilitation 263 completion order was issued before June 1, 2008, do not qualify 264 for the 2008 increase in site rehabilitation funding assistance 265 and are bound by the pre-June 1, 2008, limits. Sites meeting the 266 criteria of this subsection for which a site rehabilitation 267 completion order was not issued before June 1, 2008, regardless 268 of whether they have previously transitioned to nonstate-funded 269 cleanup status, may continue state-funded cleanup pursuant to 270 this section until a site rehabilitation completion order is 271 issued or the increased site rehabilitation funding assistance 272 limit is reached, whichever occurs first. The department may not 273 pay expenses incurred beyond the scope of an approved contract. 274 (c) Upon notification by the department that rehabilitation 275 funding assistance is available for the site pursuant to 276 subsections (5) and (6), the owner, operator, or person 277 otherwise responsible for site rehabilitation shall provide the 278 department with a limited contamination assessment report and 279 shall enter into a Petroleum Cleanup Participation Program site 280 rehabilitation agreement with the department. The agreement must 281 provide for a 25-percent copayment by the owner, operator, or 282 person otherwise responsible for conducting site rehabilitation. 283 The owner, operator, or person otherwise responsible for 284 conducting site rehabilitation shall adequately demonstrate the 285 ability to meet the copayment obligation. The limited 286 contamination assessment report and the copayment costs may be 287 reduced or eliminated if the owner and all operators responsible 288 for restoration under s. 376.308 demonstrate that they cannot 289 financially comply with the copayment and limited contamination 290 assessment report requirements. The department shall take into 291 consideration the owner’s and operator’s net worth in making the 292 determination of financial ability. In the event the department 293 and the owner, operator, or person otherwise responsible for 294 site rehabilitation cannot complete negotiation of the cost 295 sharing agreement within 120 days after beginning negotiations, 296 the department shall terminate negotiations and the site shall 297 be ineligible for state funding under this subsection and all 298 liability protections provided for in this subsection shall be 299 revoked. 300 (d) A report of a discharge made to the department by a 301 person pursuant to this subsection or any rules adopted pursuant 302 to this subsection may not be used directly as evidence of 303 liability for such discharge in any civil or criminal trial 304 arising out of the discharge. 305 (e) This subsection does not preclude the department from 306 pursuing penalties under s. 403.141 for violations of any law or 307 any rule, order, permit, registration, or certification adopted 308 or issued by the department pursuant to its lawful authority. 309 (f) Upon the filing of a discharge reporting form under 310 paragraph (a), the department or local government may not pursue 311 any judicial or enforcement action to compel rehabilitation of 312 the discharge. This paragraph does not prevent any such action 313 with respect to discharges determined ineligible under this 314 subsection or to sites for which rehabilitation funding 315 assistance is available pursuant to subsections (5) and (6). 316 (g) The following are excluded from participation in the 317 program: 318 1. Sites at which the department has been denied reasonable 319 site access to implement this section. 320 2. Sites that were active facilities when owned or operated 321 by the Federal Government. 322 3. Sites that are identified by the United States 323 Environmental Protection Agency to be on, or which qualify for 324 listing on, the National Priorities List under Superfund. This 325 exception does not apply to those sites for which eligibility 326 has been requested or granted as of the effective date of this 327 act under the Early Detection Incentive Program established 328 pursuant to s. 15, chapter 86-159, Laws of Florida. 329 4. Sites for which contamination is covered under the Early 330 Detection Incentive Program, the Abandoned Tank Restoration 331 Program, or the Petroleum Liability and Restoration Insurance 332 Program, in which case site rehabilitation funding assistance 333 shall continue under the respective program. 334 Section 3. Paragraph (a) of subsection (2) and subsection 335 (4) of section 376.30713, Florida Statutes, are amended to read: 336 376.30713 Advanced cleanup.— 337 (2) The department may approve an application for advanced 338 cleanup at eligible sites, before funding based on the site’s 339 priority ranking established pursuant to s. 376.3071(5)(a), 340 pursuant to this section. Only the facility owner or operator or 341 the person otherwise responsible for site rehabilitation 342 qualifies as an applicant under this section. 343 (a) Advanced cleanup applications may be submitted between 344 May 1 and June 30 and between November 1 and December 31 of each 345 fiscal year. Applications submitted between May 1 and June 30 346 shall be for the fiscal year beginning July 1. An application 347 must consist of: 348 1. A commitment to pay 25 percent or more of the total 349 cleanup cost deemed recoverable under this section along with 350 proof of the ability to pay the cost share. An application 351 proposing that the department enter into a performance-based 352 contract for the cleanup of 1020or more sites may use a 353 commitment to pay, a demonstrated cost savings to the 354 department, or both to meet the cost-share requirement. For an 355 application relying on a demonstrated cost savings to the 356 department, the applicant shall, in conjunction with the 357 proposed agency term contractor, establish and provide in the 358 application the percentage of cost savings in the aggregate that 359 is being provided to the department for cleanup of the sites 360 under the application compared to the cost of cleanup of those 361 same sites using the current rates provided to the department by 362 the proposed agency term contractor. The department shall 363 determine whether the cost savings demonstration is acceptable. 364 Such determination is not subject to chapter 120. 365 2. A nonrefundable review fee of $250 to cover the 366 administrative costs associated with the department’s review of 367 the application. 368 3. A limited contamination assessment report. 369 4. A proposed course of action. 370 371 The limited contamination assessment report must be sufficient 372 to support the proposed course of action and to estimate the 373 cost of the proposed course of action. Costs incurred related to 374 conducting the limited contamination assessment report are not 375 refundable from the Inland Protection Trust Fund. Site 376 eligibility under this subsection or any other provision of this 377 section is not an entitlement to advanced cleanup or continued 378 restoration funding. The applicant shall certify to the 379 department that the applicant has the prerequisite authority to 380 enter into an advanced cleanup contract with the department. The 381 certification must be submitted with the application. 382 (4) The department may enter into contracts for a total of 383 up to $25$15million of advanced cleanup work in each fiscal 384 year. However, a facility or an applicant who bundles multiple 385 sites as specified in subparagraph (2)(a)1. may not be approved 386 for more than $5 million of cleanup activity in each fiscal 387 year. A property owner or responsible party may enter into a 388 voluntary cost-share agreement in which the property owner or 389 responsible party commits to bundle multiple sites and lists the 390 facilities that will be included in those future bundles. The 391 facilities listed are not subject to agency term contractor 392 assignment pursuant to department rule. The department reserves 393 the right to terminate the voluntary cost-share agreement if the 394 property owner or responsible party fails to submit an 395 application to bundle multiple sites within an open application 396 period during which it is eligible to participate. For the 397 purposes of this section, the term “facility” includes, but is 398 not limited to, multiple site facilities such as airports, port 399 facilities, and terminal facilities even though such enterprises 400 may be treated as separate facilities for other purposes under 401 this chapter. 402 Section 4. This act shall take effect July 1, 2016.