Bill Text: FL S0702 | 2020 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: Petroleum Cleanup

Spectrum: Bipartisan Bill

Status: (Passed) 2020-06-22 - Chapter No. 2020-56 [S0702 Detail]

Download: Florida-2020-S0702-Comm_Sub.html

---

       Florida Senate - 2020                              CS for SB 702
       
       
        
       By the Committee on Environment and Natural Resources; and
       Senator Albritton
       
       
       
       
       592-02657-20                                           2020702c1
    1                        A bill to be entitled                      
    2         An act relating to petroleum cleanup; amending s.
    3         376.3071, F.S.; revising requirements for a limited
    4         contamination assessment report required to be
    5         provided by a property owner, operator, or person
    6         otherwise responsible for site rehabilitation to the
    7         Department of Environmental Protection under the
    8         Petroleum Cleanup Participation Program; amending s.
    9         376.30713, F.S.; revising the contents of an advanced
   10         cleanup application to include a specified property
   11         owner or responsible party agreement; requiring an
   12         applicant to submit a scope of work after the
   13         department has accepted the applicant’s advanced
   14         cleanup application; requiring the department to issue
   15         a purchase order for a certain contamination
   16         assessment; providing an effective date.
   17          
   18  Be It Enacted by the Legislature of the State of Florida:
   19  
   20         Section 1. Subsection (13) of section 376.3071, Florida
   21  Statutes, is amended to read:
   22         376.3071 Inland Protection Trust Fund; creation; purposes;
   23  funding.—
   24         (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
   25  detection, reporting, and cleanup of contamination caused by
   26  discharges of petroleum or petroleum products, the department
   27  shall, within the guidelines established in this subsection,
   28  implement a cost-sharing cleanup program to provide
   29  rehabilitation funding assistance for all property contaminated
   30  by discharges of petroleum or petroleum products from a
   31  petroleum storage system occurring before January 1, 1995,
   32  subject to a copayment provided for in a Petroleum Cleanup
   33  Participation Program site rehabilitation agreement. Eligibility
   34  is subject to an annual appropriation from the fund.
   35  Additionally, funding for eligible sites is contingent upon
   36  annual appropriation in subsequent years. Such continued state
   37  funding is not an entitlement or a vested right under this
   38  subsection. Eligibility shall be determined in the program,
   39  notwithstanding any other provision of law, consent order,
   40  order, judgment, or ordinance to the contrary.
   41         (a)1. The department shall accept any discharge reporting
   42  form received before January 1, 1995, as an application for this
   43  program, and the facility owner or operator need not reapply.
   44         2. Regardless of whether ownership has changed, owners or
   45  operators of property that is contaminated by petroleum or
   46  petroleum products from a petroleum storage system may apply for
   47  such program by filing a written report of the contamination
   48  incident, including evidence that such incident occurred before
   49  January 1, 1995, with the department. Incidents of petroleum
   50  contamination discovered after December 31, 1994, at sites which
   51  have not stored petroleum or petroleum products for consumption,
   52  use, or sale after such date shall be presumed to have occurred
   53  before January 1, 1995. An operator’s filed report shall be an
   54  application of the owner for all purposes.
   55         (b) Subject to annual appropriation from the fund, sites
   56  meeting the criteria of this subsection are eligible for up to
   57  $400,000 of site rehabilitation funding assistance in priority
   58  order pursuant to subsections (5) and (6). Sites meeting the
   59  criteria of this subsection for which a site rehabilitation
   60  completion order was issued before June 1, 2008, do not qualify
   61  for the 2008 increase in site rehabilitation funding assistance
   62  and are bound by the pre-June 1, 2008, limits. Sites meeting the
   63  criteria of this subsection for which a site rehabilitation
   64  completion order was not issued before June 1, 2008, regardless
   65  of whether they have previously transitioned to nonstate-funded
   66  cleanup status, may continue state-funded cleanup pursuant to
   67  this section until a site rehabilitation completion order is
   68  issued or the increased site rehabilitation funding assistance
   69  limit is reached, whichever occurs first. The department may not
   70  pay expenses incurred beyond the scope of an approved contract.
   71         (c) The department may also approve supplemental funding of
   72  up to $100,000 for additional remediation and monitoring if such
   73  remediation and monitoring is necessary to achieve a
   74  determination of “No Further Action.”
   75         (d) Upon notification by the department that rehabilitation
   76  funding assistance is available for the site pursuant to
   77  subsections (5) and (6), the property owner, operator, or person
   78  otherwise responsible for site rehabilitation shall provide the
   79  department with a limited contamination assessment report and
   80  shall enter into a Petroleum Cleanup Participation Program site
   81  rehabilitation agreement with the department. The limited
   82  contamination assessment report must be sufficient to support
   83  the proposed course of action and to estimate the cost of the
   84  proposed course of action. The agreement must provide for a 25
   85  percent cost savings to the department, a copayment by the
   86  owner, operator, or person otherwise responsible for conducting
   87  site rehabilitation, or a combination of cost savings and a
   88  copayment. Cost savings to the department may be demonstrated in
   89  the form of reduced rates by the proposed agency term contractor
   90  or the difference in cost associated with a Risk Management
   91  Options Level I closure versus a Risk Management Options Level
   92  II closure. For the purpose of this paragraph, the term:
   93         1. “Risk Management Options Level I” means a “No Further
   94  Action” closure without institutional controls or without
   95  institutional and engineering controls. This closure option
   96  applies subject to conditions in department rules and
   97  agreements.
   98         2. “Risk Management Options Level II” means a “No Further
   99  Action” closure where institutional controls and, if
  100  appropriate, engineering controls apply if the controls are
  101  protective of human health, public safety, and the environment.
  102  This closure option applies subject to conditions in department
  103  rules and agreements. The owner, operator, or person otherwise
  104  responsible for conducting site rehabilitation shall adequately
  105  demonstrate the ability to meet the copayment obligation. The
  106  limited contamination assessment report and the copayment costs
  107  may be reduced or eliminated if the owner and all operators
  108  responsible for restoration under s. 376.308 demonstrate that
  109  they cannot financially comply with the copayment and limited
  110  contamination assessment report requirements. The department
  111  shall take into consideration the owner’s and operator’s net
  112  worth in making the determination of financial ability. In the
  113  event the department and the owner, operator, or person
  114  otherwise responsible for site rehabilitation cannot complete
  115  negotiation of the cost-sharing agreement within 120 days after
  116  beginning negotiations, the department shall terminate
  117  negotiations and the site shall be ineligible for state funding
  118  under this subsection and all liability protections provided for
  119  in this subsection shall be revoked.
  120         (e) A report of a discharge made to the department by a
  121  person pursuant to this subsection or any rules adopted pursuant
  122  to this subsection may not be used directly as evidence of
  123  liability for such discharge in any civil or criminal trial
  124  arising out of the discharge.
  125         (f) This subsection does not preclude the department from
  126  pursuing penalties under s. 403.141 for violations of any law or
  127  any rule, order, permit, registration, or certification adopted
  128  or issued by the department pursuant to its lawful authority.
  129         (g) Upon the filing of a discharge reporting form under
  130  paragraph (a), the department or local government may not pursue
  131  any judicial or enforcement action to compel rehabilitation of
  132  the discharge. This paragraph does not prevent any such action
  133  with respect to discharges determined ineligible under this
  134  subsection or to sites for which rehabilitation funding
  135  assistance is available pursuant to subsections (5) and (6).
  136         (h) The following are excluded from participation in the
  137  program:
  138         1. Sites at which the department has been denied reasonable
  139  site access to implement this section.
  140         2. Sites that were active facilities when owned or operated
  141  by the Federal Government.
  142         3. Sites that are identified by the United States
  143  Environmental Protection Agency to be on, or which qualify for
  144  listing on, the National Priorities List under Superfund. This
  145  exception does not apply to those sites for which eligibility
  146  has been requested or granted as of the effective date of this
  147  act under the Early Detection Incentive Program established
  148  pursuant to s. 15, chapter 86-159, Laws of Florida.
  149         4. Sites for which contamination is covered under the Early
  150  Detection Incentive Program, the Abandoned Tank Restoration
  151  Program, or the Petroleum Liability and Restoration Insurance
  152  Program, in which case site rehabilitation funding assistance
  153  shall continue under the respective program.
  154         Section 2. Subsection (2) of section 376.30713, Florida
  155  Statutes, is amended to read:
  156         376.30713 Advanced cleanup.—
  157         (2) The department may approve an application for advanced
  158  cleanup at eligible sites, including applications submitted
  159  pursuant to paragraph (c), notwithstanding the site’s priority
  160  ranking established pursuant to s. 376.3071(5)(a), pursuant to
  161  this section. Only the facility owner or operator or the person
  162  otherwise responsible for site rehabilitation qualifies as an
  163  applicant under this section.
  164         (a) Advanced cleanup applications may be submitted between
  165  May 1 and June 30 and between November 1 and December 31 of each
  166  fiscal year. Applications submitted between May 1 and June 30
  167  shall be for the fiscal year beginning July 1. An application
  168  must consist of:
  169         1. A commitment to pay 25 percent or more of the total
  170  cleanup cost deemed recoverable under this section along with
  171  proof of the ability to pay the cost share. The department shall
  172  determine whether the cost savings demonstration is acceptable.
  173  Such determination is not subject to chapter 120.
  174         a. Applications for the aggregate cleanup of five or more
  175  sites may be submitted in one of two formats to meet the cost
  176  share requirement:
  177         (I) For an aggregate application proposing that the
  178  department enter into a performance-based contract, the
  179  applicant may use a commitment to pay, a demonstrated cost
  180  savings to the department, or both to meet the requirement.
  181         (II) For an aggregate application relying on a demonstrated
  182  cost savings to the department, the applicant shall, in
  183  conjunction with the proposed agency term contractor, establish
  184  and provide in the application the percentage of cost savings in
  185  the aggregate that is being provided to the department for
  186  cleanup of the sites under the application compared to the cost
  187  of cleanup of those same sites using the current rates provided
  188  to the department by the proposed agency term contractor.
  189         b. Applications for the cleanup of individual sites may be
  190  submitted in one of two formats to meet the cost-share
  191  requirement:
  192         (I) For an individual application proposing that the
  193  department enter into a performance-based contract, the
  194  applicant may use a commitment to pay, a demonstrated cost
  195  savings to the department, or both to meet the requirement.
  196         (II) For an individual application relying on a
  197  demonstrated cost savings to the department, the applicant
  198  shall, in conjunction with the proposed agency term contractor,
  199  establish and provide in the application a 25-percent cost
  200  savings to the department for cleanup of the site under the
  201  application compared to the cost of cleanup of the same site
  202  using the current rates provided to the department by the
  203  proposed agency term contractor.
  204         2. A nonrefundable review fee of $250 to cover the
  205  administrative costs associated with the department’s review of
  206  the application.
  207         3. A property owner or responsible party agreement in which
  208  the property owner or responsible party commits to continue to
  209  participate in the advanced cleanup program upon completion of
  210  the limited contamination assessment and finalization of the
  211  proposed course of action limited contamination assessment
  212  report.
  213         4. A conceptual proposed course of action.
  214         5. A department site access agreement, or similar
  215  agreements approved by the department that do not violate state
  216  law, entered into with the property owner or owners, as
  217  applicable, and evidence of authorization from such owner or
  218  owners for petroleum site rehabilitation program tasks
  219  consistent with the proposed course of action where the
  220  applicant is not the property owner for any of the sites
  221  contained in the application.
  222  
  223  The limited contamination assessment report must be sufficient
  224  to support the proposed course of action and to estimate the
  225  cost of the proposed course of action. Costs incurred related to
  226  conducting the limited contamination assessment report are not
  227  refundable from the Inland Protection Trust Fund. Site
  228  eligibility under this subsection or any other provision of this
  229  section is not an entitlement to advanced cleanup or continued
  230  restoration funding.
  231         6. A certification The applicant shall certify to the
  232  department that the applicant has the prerequisite authority to
  233  enter into an advanced cleanup contract with the department. The
  234  certification must be submitted with the application.
  235         (b) The department shall rank the applications based on the
  236  percentage of cost-sharing commitment proposed by the applicant,
  237  with the highest ranking given to the applicant who proposes the
  238  highest percentage of cost sharing. If the department receives
  239  applications that propose identical cost-sharing commitments and
  240  that exceed the funds available to commit to all such proposals
  241  during the advanced cleanup application period, the department
  242  shall proceed to rerank those applicants. Those applicants
  243  submitting identical cost-sharing proposals that exceed funding
  244  availability must be so notified by the department and offered
  245  the opportunity to raise their individual cost-share
  246  commitments, in a period specified in the notice. At the close
  247  of the period, the department shall proceed to rerank the
  248  applications pursuant to this paragraph.
  249         (c) Applications for the advanced cleanup of individual
  250  sites scheduled for redevelopment are not subject to the
  251  application period limitations or the requirement to pay 25
  252  percent of the total cleanup cost specified in paragraph (a) or
  253  to the cost-sharing commitment specified in paragraph (1)(d).
  254  Applications must be accepted on a first-come, first-served
  255  basis and are not subject to the ranking provisions of paragraph
  256  (b). Applications for the advanced cleanup of individual sites
  257  scheduled for redevelopment must include:
  258         1. A nonrefundable review fee of $250 to cover the
  259  administrative costs associated with the department’s review of
  260  the application.
  261         2. A limited contamination assessment report. The report
  262  must be sufficient to support the proposed course of action and
  263  to estimate the cost of the proposed course of action. Costs
  264  incurred related to conducting and preparing the report are not
  265  refundable from the Inland Protection Trust Fund.
  266         3. A proposed course of action for cleanup of the site.
  267         4. If the applicant is not the property owner for any of
  268  the sites contained in the application, a department site access
  269  agreement, or a similar agreement approved by the department and
  270  not in violation of state law, entered into with the property
  271  owner or owners, as applicable, and evidence of authorization
  272  from such owner or owners for petroleum site rehabilitation
  273  program tasks consistent with the proposed course of action.
  274         5. A certification to the department stating that the
  275  applicant has the prerequisite authority to enter into an
  276  advanced cleanup contract with the department. The advanced
  277  cleanup contract must include redevelopment and site
  278  rehabilitation milestones.
  279         6. Documentation, in the form of a letter from the local
  280  government having jurisdiction over the area where the site is
  281  located, which states that the local government is in agreement
  282  with or approves the proposed redevelopment and that the
  283  proposed redevelopment complies with applicable law and
  284  requirements for such redevelopment.
  285         7. A demonstrated reasonable assurance that the applicant
  286  has sufficient financial resources to implement and complete the
  287  redevelopment project.
  288         (d) Upon acceptance of an advanced cleanup application, the
  289  applicant’s selected agency term contractor shall submit to the
  290  department a scope of work for a limited contamination
  291  assessment. When the scope of work is negotiated and agreed
  292  upon, the department shall issue one or more purchase orders of
  293  up to $35,000 each for the limited contamination assessment. The
  294  limited contamination assessment report must be sufficient to
  295  support the proposed course of action and to estimate the cost
  296  of the proposed course of action.
  297         (e) Site eligibility under this section is not an
  298  entitlement to advanced cleanup funding or continued restoration
  299  funding.
  300         Section 3. This act shall take effect July 1, 2020.