§ 376.3071 — Inland Protection Trust Fund; creation; purposes; funding
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(1) FINDINGS. — In addition to the legislative findings set forth in s. 376.30, the Legislature finds and declares: (a) That significant quantities of petroleum and petroleum products are being stored in storage systems in this state, which is a hazardous undertaking. (b) That spills, leaks, and other discharges from such storage systems have occurred, are occurring, and will continue to occur and that such discharges pose a significant threat to the quality of the groundwaters and inland surface waters of this state. (c) That, where contamination of the ground or surface water has occurred, remedial measures have often been delayed for long periods while determinations as to liability and the extent of liability are made and that such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to water resources and the environment; and in significantly higher costs to contain and remove the contamination. (d) That adequate financial resources must be readily available to provide for the expeditious supply of safe and reliable alternative sources of potable water to affected persons and to provide a means for investigation and cleanup of contamination sites without delay. (e) That it is necessary to fulfill the intent and purposes of ss. 376.30-376.317 and determined to be in the best interest of, and necessary for the protection of the public health, safety, and welfare of the residents of this state, and therefore a paramount public purpose, to provide for the creation of a nonprofit public benefit corporation as an instrumentality of the state to assist in financing the functions provided in ss. 376.30-376.317 and to authorize the department to enter into one or more service contracts with such corporation for the purpose of financing services related to such functions and to make payments thereunder from the amount on deposit in the Inland Protection Trust Fund, subject to annual appropriation by the Legislature. (f) That to achieve the purposes established in paragraph (e) and in order to facilitate the expeditious handling and rehabilitation of contamination sites and remedial measures with respect to contamination sites without delay, it is in the best interests of the residents of this state to authorize such corporation to issue evidences of indebtedness payable from amounts paid by the department under any such service contract entered into between the department and such corporation. (g) That the Petroleum Restoration Program must be implemented in a manner that reduces costs and improves the efficiency of rehabilitation activities to reduce the significant backlog of contaminated sites eligible for state-funded rehabilitation and the corresponding threat to the public health, safety, and welfare; water resources; and the environment. (h) That Congress enacted the Energy Policy Act of 2005, amending the Clean Water Act, and that the state enacted the Renewable Fuels Standard, to establish a renewable fuel standard requiring the use of ethanol as an oxygenate additive for gasoline and biodiesel as an additive for ultra-low sulfur diesel fuel. An unintended consequence of the inclusion of ethanol in gasoline and biodiesel in diesel fuel has been to cause, and potentially cause, significant corrosion and other damage to storage tanks, piping, and storage tank system components regulated under this chapter. The Legislature further finds that storage tanks, piping, and storage tank system components have been found by the department in its equipment approval process to meet compatibility standards; however, these standards may have subsequently changed due to the introduction of ethanol and biodiesel. The state enacted secondary containment requirements before the mandated introduction of ethanol into gasoline and biodiesel into ultra-low sulfur diesel fuel. Therefore, owners and operators of petroleum storage facilities in the state that complied with the state’s secondary containment requirements and installed approved equipment that may not have been evaluated for compatibility with ethanol and biodiesel, cross-contamination due to the storage of gasoline and diesel fuel, and the effects of condensation and minimal amounts of water in storage tanks are at a particular risk for having to repair or replace equipment or take other preventive measures in advance of the equipment’s expected useful life in order to prevent releases or discharges of pollutants.
(2) INTENT AND PURPOSE. — (a) It is the intent of the Legislature to establish the Inland Protection Trust Fund to serve as a repository for funds which will enable the department to respond without delay to incidents of inland contamination, and damage or potential damage to storage tank systems caused by ethanol or biodiesel as described in subsection (15) which may result in such incidents, related to the storage of petroleum and petroleum products in order to protect the public health, safety, and welfare and to minimize environmental damage. (b) It is the intent of the Legislature that the department implement rules and procedures to improve the efficiency and productivity of the Petroleum Restoration Program. The department is directed to implement rules and policies to eliminate and reduce duplication of site rehabilitation efforts, paperwork, and documentation, and micromanagement of site rehabilitation tasks. The department shall make efficiency and productivity a priority in the administration of the Petroleum Restoration Program and to this end, when necessary, shall use petroleum program contracted services to improve the efficiency and productivity of the program. Furthermore, when implementing rules and procedures to improve such efficiency and productivity, the department shall recognize and consider the potential value of utilizing contracted inspection and professional resources to efficiently and productively administer the program. (c) It is the intent of the Legislature that rehabilitation of contamination sites be conducted with emphasis on first addressing the sites that pose the greatest threat to the public health, safety, and welfare; water resources; and the environment, within the availability of funds in the Inland Protection Trust Fund, recognizing that source removal, wherever it is technologically feasible and cost-effective, will significantly reduce contamination or eliminate the spread of contamination and will protect the public health, safety, and welfare; water resources; and the environment. (d) The department is directed to adopt and implement uniform and standardized forms for site rehabilitation work and for the submittal of reports to ensure that information is submitted to the department in a concise, standardized uniform format seeking only information that is necessary. (e) The department is directed to implement computerized and electronic filing capabilities and submittal of reports in order to expedite submittal of the information and elimination of delay in paperwork. (f) The department is directed to establish guidelines for consideration and acceptance of new and innovative technologies for site rehabilitation work.
(3) CREATION. — There is created the Inland Protection Trust Fund, hereinafter referred to as the “fund,” to be administered by the department. This fund shall be used by the department as a nonlapsing revolving fund for carrying out the purposes of this section and s. 376.3073. To this fund shall be credited all penalties, judgments, recoveries, reimbursements, loans, and other fees and charges related to the implementation of this section and s. 376.3073 and the excise tax revenues levied, collected, and credited pursuant to ss. 206.9935(3) and 206.9945(1)(c). Charges against the fund shall be made pursuant to this section.
(4) USES. — Whenever, in its determination, incidents of inland contamination, or potential incidents as provided in subsection (15), related to the storage of petroleum or petroleum products may pose a threat to the public health, safety, or welfare; water resources; or the environment, the department shall obligate moneys available in the fund to provide for: (a) Prompt investigation and assessment of contamination sites. (b) Expeditious restoration or replacement of potable water supplies as provided in s. 376.30(3)(c)1. (c) Rehabilitation of contamination sites, which shall consist of cleanup of affected soil, groundwater, and inland surface waters, using the most cost-effective alternative that is technologically feasible and reliable and that provides adequate protection of the public health, safety, and welfare, and water resources, and that minimizes environmental damage, pursuant to the site selection and cleanup criteria established by the department under subsection (5), except that this paragraph does not authorize the department to obligate funds for payment of costs which may be associated with, but are not integral to, site rehabilitation, such as the cost for retrofitting or replacing petroleum storage systems. (d) Maintenance and monitoring of contamination sites. (e) Inspection and supervision of activities described in this subsection. (f) Payment of expenses incurred by the department in its efforts to obtain from responsible parties the payment or recovery of reasonable costs resulting from the activities described in this subsection. (g) Payment of any other reasonable costs of administration, including those administrative costs incurred by the Department of Health in providing field and laboratory services, toxicological risk assessment, and other assistance to the department in the investigation of drinking water contamination complaints and costs associated with public information and education activities. (h) Establishment and implementation of the compliance verification program as authorized in s. 376.303(1)(a), including contracting with local governments or state agencies to provide for the administration of such program through locally administered programs, to minimize the potential for further contamination sites. (i) Funding of the provisions of ss. 376.305(6) and 376.3072. (j) Activities related to removal and replacement of petroleum storage systems, if repair, replacement, or other preventive measures are authorized under subsection (15), or exclusive of costs of any tank, piping, dispensing unit, or related hardware, if soil removal is approved as a component of site rehabilitation and requires removal of the tank where remediation is conducted under this section, or if such activities were justified in an approved remedial action plan. (k) Reasonable costs of restoring property as nearly as practicable to the conditions which existed before activities associated with contamination assessment or remedial action taken under s. 376.303(4). (l) Repayment of loans to the fund. (m) Expenditure of sums from the fund to cover ineligible sites or costs as set forth in subsection (13), if the department in its discretion deems it necessary to do so. In such cases, the department may seek recovery and reimbursement of costs in the same manner and pursuant to the same procedures established for recovery and reimbursement of sums otherwise owed to or expended from the fund. (n) Payment of amounts payable under any service contract entered into by the department pursuant to s. 376.3075, subject to annual appropriation by the Legislature. (o) Petroleum remediation pursuant to this section throughout a state fiscal year. The department shall establish a process to uniformly encumber appropriated funds throughout a state fiscal year and shall allow for emergencies and imminent threats to public health, safety, and welfare; water resources; and the environment, as provided in paragraph (5)(a). This paragraph does not apply to appropriations associated with the free product recovery initiative provided in paragraph (5)(c) or the advanced cleanup program provided in s. 376.30713. (p) Enforcement of this section and ss. 376.30-376.317 by the Fish and Wildlife Conservation Commission and the Department of Environmental Protection. The department shall disburse moneys to the commission for such purpose. (q) Payments for program deductibles, copayments, and limited contamination assessment reports that otherwise would be paid by another state agency for state-funded petroleum contamination site rehabilitation. (r) Payments for the repair or replacement of, or other preventive measures for, storage tanks, piping, or system components as provided in subsection (15). Such costs may include equipment, excavation, electrical work, and site restoration. The issuance of a site rehabilitation completion order pursuant to subsection (5) or paragraph (12)(b) for contamination eligible for programs funded by this section does not alter the project’s eligibility for state-funded remediation if the department determines that site conditions are not protective of human health under actual or proposed circumstances of exposure under subsection (5). The Inland Protection Trust Fund may be used only to fund the activities in ss. 376.30-376.317 except ss. 376.3078 and 376.3079. Amounts on deposit in the fund in each fiscal year must first be applied or allocated for the payment of amounts payable by the department pursuant to paragraph (n) under a service contract entered into by the department pursuant to s. 376.3075 and appropriated in each year by the Legislature before making or providing for other disbursements from the fund. This subsection does not authorize the use of the fund for cleanup of contamination caused primarily by a discharge of solvents as defined in s. 206.9925, or polychlorinated biphenyls when their presence causes them to be hazardous wastes, except solvent contamination which is the result of chemical or physical breakdown of petroleum products and is otherwise eligible. Facilities used primarily for the storage of motor or diesel fuels as defined in ss. 206.01 and 206.86 are not excluded from eligibility pursuant to this section.
(5) SITE SELECTION AND CLEANUP CRITERIA. — (a) The department shall adopt rules to establish priorities based upon a scoring system for state-conducted cleanup at petroleum contamination sites based upon factors that include, but need not be limited to: 1. The degree to which the public health, safety, or welfare may be affected by exposure to the contamination; 2. The size of the population or area affected by the contamination; 3. The present and future uses of the affected aquifer or surface waters, with particular consideration as to the probability that the contamination is substantially affecting, or will migrate to and substantially affect, a known public or private source of potable water; and 4. The effect of the contamination on water resources and the environment. Moneys in the fund shall then be obligated for activities described in paragraphs (4)(a)-(e) at individual sites pursuant to such established criteria. However, this paragraph does not restrict the department from modifying the priority status of a rehabilitation site where conditions warrant, taking into consideration the actual distance between the contamination site and groundwater or surface water receptors or other factors that affect the risk of exposure to petroleum products’ chemicals of concern. The department may use the effective date of a department final order granting eligibility pursuant to subsections (10) and (13) and ss. 376.305(6) and 376.3072 to establish a prioritization system within a particular priority scoring range. (b) It is the intent of the Legislature to protect the health of all people under actual circumstances of exposure. The secretary shall establish criteria by rule for the purpose of determining, on a site-specific basis, the rehabilitation program tasks that comprise a site rehabilitation program and the level at which a rehabilitation program task and a site rehabilitation program are completed. In establishing the rule, the department shall incorporate, to the maximum extent feasible, risk-based corrective action principles to achieve protection of the public health, safety, and welfare; water resources; and the environment in a cost-effective manner as provided in this subsection. Criteria for determining what constitutes a rehabilitation program task or completion of site rehabilitation program tasks and site rehabilitation programs shall be based upon the factors set forth in paragraph (a) and the following additional factors: 1. The current exposure and potential risk of exposure to humans and the environment including multiple pathways of exposure. 2. The appropriate point of compliance with cleanup target levels for petroleum products’ chemicals of concern. The point of compliance shall be at the source of the petroleum contamination. However, the department may temporarily move the point of compliance to the boundary of the property, or to the edge of the plume when the plume is within the property boundary, while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding. The department may also, pursuant to criteria provided for in this paragraph, temporarily extend the point of compliance beyond the property boundary with appropriate monitoring, if such extension is needed to facilitate natural attenuation or to address the current conditions of the plume, if the public health, safety, and welfare; water resources; and the environment are adequately protected. Temporary extension of the point of compliance beyond the property boundary, as provided in this subparagraph, must include notice to local governments and owners of any property into which the point of compliance is allowed to extend. 3. The appropriate site-specific cleanup goal. The site-specific cleanup goal shall be that all petroleum contamination sites ultimately achieve the applicable cleanup target levels provided in this paragraph. However, the department may allow concentrations of the petroleum products’ chemicals of concern to temporarily exceed the applicable cleanup target levels while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding, if the public health, safety, and welfare; water resources; and the environment are adequately protected. 4. The appropriateness of using institutional or engineering controls. Site rehabilitation programs may include the use of institutional or engineering controls to eliminate the potential exposure to petroleum products’ chemicals of concern to humans or the environment. Use of such controls must have prior department approval, and institutional controls may not be acquired with moneys from the fund other than the costs associated with a professional land survey or a specific purpose survey, if such is needed, and costs associated with obtaining a title report and recording fees. When institutional or engineering controls are implemented to control exposure, the removal of such controls must have prior department approval and must be accompanied immediately by the resumption of active cleanup or other approved controls unless cleanup target levels pursuant to this paragraph have been achieved. 5. The additive effects of the petroleum products’ chemicals of concern. The synergistic effects of petroleum products’ chemicals of concern must also be considered when the scientific data becomes available. 6. Individual site characteristics which must include, but not be limited to, the current and projected use of the affected groundwater in the vicinity of the site, current and projected land uses of the area affected by the contamination, the exposed population, the degree and extent of contamination, the rate of contaminant migration, the apparent or potential rate of contaminant degradation through natural attenuation processes, the location of the plume, and the potential for further migration in relation to site property boundaries. 7. Applicable state water quality standards. a. Cleanup target levels for petroleum products’ chemicals of concern found in groundwater shall be the applicable state water quality standards. Where such standards do not exist, the cleanup target levels for groundwater shall be based on the minimum criteria specified in department rule. The department shall consider the following, as appropriate, in establishing the applicable minimum criteria: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; the naturally occurring background concentration; or nuisance, organoleptic, and aesthetic considerations. b. Where surface waters are exposed to petroleum contaminated groundwater, the cleanup target levels for the petroleum products’ chemicals of concern shall be based on the surface water standards as established by department rule. The point of measuring compliance with the surface water standards shall be in the groundwater immediately adjacent to the surface water body. 8. Whether deviation from state water quality standards or from established criteria is appropriate. The department may issue a “No Further Action Order” based upon the degree to which the desired cleanup target level is achievable and can be reasonably and cost-effectively implemented within available technologies or engineering and institutional control strategies. Where a state water quality standard is applicable, a deviation may not result in the application of cleanup target levels more stringent than the standard. In determining whether it is appropriate to establish alternate cleanup target levels at a site, the department may consider the effectiveness of source removal that has been completed at the site and the practical likelihood of the use of low yield or poor quality groundwater; the use of groundwater near marine surface water bodies; the current and projected use of the affected groundwater in the vicinity of the site; or the use of groundwater in the immediate vicinity of the storage tank area, where it has been demonstrated that the groundwater contamination is not migrating away from such localized source, if the public health, safety, and welfare; water resources; and the environment are adequately protected. 9. Appropriate cleanup target levels for soils. a. In establishing soil cleanup target levels for human exposure to petroleum products’ chemicals of concern found in soils from the land surface to 2 feet below land surface, the department shall consider the following, as appropriate: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; or the naturally occurring background concentration. b. Leachability-based soil target levels shall be based on protection of the groundwater cleanup target levels or the alternate cleanup target levels for groundwater established pursuant to this paragraph, as appropriate. Source removal and other cost-effective alternatives that are technologically feasible shall be considered in achieving the leachability soil target levels established by the department. The leachability goals do not apply if the department determines, based upon individual site characteristics, that petroleum products’ chemicals of concern will not leach into the groundwater at levels which pose a threat to public health, safety, and welfare; water resources; or the environment. This paragraph does not restrict the department from temporarily postponing completion of any site rehabilitation program for which funds are being expended whenever such postponement is necessary in order to make funds available for rehabilitation of a contamination site with a higher priority status. (c) The department shall require source removal, if warranted and cost-effective, at each site eligible for restoration funding from the fund. 1. Funding for free product recovery may be provided in advance of the order established by the priority ranking system under paragraph (a) for site cleanup activities. However, a separate prioritization for free product recovery shall be established consistent with paragraph (a). No more than $5 million shall be encumbered from the fund in any fiscal year for free product recovery conducted in advance of the priority order under paragraph (a) established for site cleanup activities. 2. Once free product removal and other source removal identified in this paragraph are completed at a site, and notwithstanding the order established by the priority ranking system under paragraph (a) for site cleanup activities, the department may reevaluate the site to determine the degree of active cleanup needed to continue site rehabilitation. Further, the department shall determine whether the reevaluated site qualifies for natural attenuation monitoring, long-term natural attenuation monitoring, or no further action. If additional site rehabilitation is necessary to reach no further action status, the site rehabilitation shall be conducted in the order established by the priority ranking system under paragraph (a). The department shall use natural attenuation monitoring strategies and, when cost-effective, transition sites eligible for restoration funding assistance to long-term natural attenuation monitoring where the plume is shrinking or stable and confined to the source property boundaries and the petroleum products’ chemicals of concern meet the natural attenuation default concentrations, as defined by department rule. If the plume migrates beyond the source property boundaries, natural attenuation monitoring may be conducted pursuant to department rule, or if the site no longer qualifies for natural attenuation monitoring, active remediation may be resumed. For long-term natural attenuation monitoring, if the petroleum products’ chemicals of concern increase or are not significantly reduced after 42 months of monitoring, or if the plume migrates beyond the property boundaries, active remediation shall be resumed as necessary. For sites undergoing active remediation, the department shall evaluate the cost of natural attenuation monitoring to ensure that site mobilizations are performed in a cost-effective manner. Sites that are not eligible for state restoration funding may transition to long-term natural attenuation monitoring using the criteria in this subparagraph. This subparagraph does not preclude a site from pursuing a “No Further Action” order with conditions. 3. The department shall evaluate whether higher natural attenuation default concentrations for natural attenuation monitoring or long-term natural attenuation monitoring are cost-effective and would adequately protect the public health, safety, and welfare; water resources; and the environment. The department shall also evaluate site-specific characteristics that would allow for higher natural attenuation or long-term natural attenuation concentration levels. 4. A local government may not deny a building permit based solely on the presence of petroleum contamination for any construction, repairs, or renovations performed in conjunction with tank upgrade activities to an existing retail fuel facility if the facility was fully operational before the building permit was requested and if the construction, repair, or renovation is performed by a licensed contractor. All building permits and any construction, repairs, or renovations performed in conjunction with such permits must comply with the applicable provisions of chapters 489 and 553.
(6) CONTRACTING AND CONTRACTOR SELECTION REQUIREMENTS. — (a) Site rehabilitation work on sites which are eligible for state-funded cleanup from the fund pursuant to this section and ss. 376.305(6), 376.3072, and 376.3073 may only be funded pursuant to this section. A facility operator shall abate the source of discharge for a new release that occurred after March 29, 1995. If free product is present, the operator shall notify the department, and the department may direct the removal of the free product. The department shall grant approval to continue site rehabilitation pursuant to this section. (b) When contracting for site rehabilitation activities performed under the Petroleum Restoration Program, the department shall comply with competitive procurement requirements provided in chapter 287 or rules adopted under this section or s. 287.0595. (c) Each contractor performing site assessment and remediation activities for state-funded sites under this section shall certify to the department that the contractor meets all certification and license requirements imposed by law. Each contractor shall certify to the department that the contractor meets the following minimum qualifications: 1. Complies with applicable Occupational Safety and Health Administration regulations. 2. Maintains workers’ compensation insurance for employees as required by the Florida Workers’ Compensation Law. 3. Maintains comprehensive general liability and comprehensive automobile liability insurance with minimum limits of at least $1 million per occurrence and $1 million annual aggregate to pay claims for damage for personal injury, including accidental death, as well as claims for property damage that may arise from performance of work under the program, which insurance designates the state as an additional insured party. 4. Maintains professional liability insurance of at least $1 million per occurrence and $1 million annual aggregate. 5. Has the capacity to perform or directly supervise the majority of the rehabilitation work at a site pursuant to s. 489.113(9). (d) The department rules implementing this section must specify that only qualified vendors may submit responses on a competitive solicitation. The department rules must also include procedures for the rejection of vendors not meeting the minimum qualifications on the opening of a competitive solicitation and requirements for a vendor to maintain its qualifications in order to enter contracts or perform rehabilitation work. (e) A contractor that performs services pursuant to this subsection may file invoices for payment with the department for the services described in the approved contract. The invoices for payment must be submitted to the department on forms provided by the department, together with evidence documenting that activities were conducted or completed pursuant to the approved contract. If there are sufficient unencumbered funds available in the fund which have been appropriated for expenditure by the Legislature, and if all of the terms of the approved contract have been met, invoices for payment must be paid pursuant to s. 215.422. After a contractor has submitted its invoices to the department, and before payment is made, the contractor may assign its right to payment to another person without recourse of the assignee or assignor to the state. In such cases, the assignee must be paid pursuant to s. 215.422. Prior notice of the assignment and assignment information must be made to the department and must be signed and notarized by the assigning party. (f) The contractor shall submit an invoice to the department within 30 days after the date of the department’s written acceptance of each interim deliverable or written approval of the final deliverable specified in the approved contract. (g) The department shall make payments based on the terms of an approved contract for site rehabilitation work. The department may, based on its experience and the past performance and concerns regarding a contractor, retain up to 25 percent of the contracted amount or use performance bonds to ensure performance. The amount of retainage and the amount of performance bonds, as well as the terms and conditions for such, must be included in the approved contract. (h) The contractor, or the person to whom the contractor has assigned its right to payment pursuant to paragraph (e), shall make prompt payment to subcontractors and suppliers for their costs associated with an approved contract pursuant to s. 287.0585, except that the contractor, or the person to whom the contractor has assigned its right to payment pursuant to paragraph (e), may remit payments to subcontractors and suppliers within 30 working days after the contractor’s receipt of payment by the department before the penalties required by s. 287.0585(1) are applicable. (i) The exemption under s. 287.0585(2) does not apply to payments associated with an approved contract. (j) The department may withhold payment if the validity or accuracy of a contractor’s invoices or supporting documents is in question. (k) This section does not authorize payment to a person for costs of contaminated soil treatment or disposal that does not meet the applicable rules of this state for such treatment or disposal, including all general permitting, state air emission standards, monitoring, sampling, and reporting rules more specifically described in department rules. (l) The department shall terminate or suspend a contractor’s eligibility for participation in the program if the contractor fails to perform its contractual duties for site rehabilitation program tasks. (m) A site owner or operator, or his or her designee, may not receive any remuneration, in cash or in kind, directly or indirectly, from a rehabilitation contractor performing site cleanup activities pursuant to this section.
(7) FUNDING. — The Inland Protection Trust Fund shall be funded as follows: (a) All excise taxes levied, collected, and credited to the fund in accordance with ss. 206.9935(3) and 206.9945(1)(c). (b) All penalties, judgments, recoveries, reimbursements, and other fees and charges credited to the fund pursuant to subsection (3).
(8) DEPARTMENTAL DUTY TO SEEK RECOVERY AND REIMBURSEMENT. — (a) Except as provided in subsection (10) and as otherwise provided by law, the department shall recover to the use of the fund from a person or persons at any time causing or having caused the discharge or from the Federal Government, jointly and severally, all sums owed or expended from the fund pursuant to s. 376.308, except that the department may decline to pursue such recovery if it finds the amount involved too small or the likelihood of recovery too uncertain. Sums recovered as a result of damage due to a discharge related to the storage of petroleum or petroleum products or other similar disaster shall be apportioned between the fund and the General Revenue Fund so as to repay the full costs to the General Revenue Fund of sums disbursed therefrom as a result of such disaster. A request for reimbursement to the fund for such costs, if not paid within 30 days after demand, shall be turned over to the department for collection. (b) Except as provided in subsection (10) and as otherwise provided by law, it is the duty of the department in administering the fund diligently to pursue the reimbursement to the fund of any sum expended from the fund for cleanup and abatement pursuant to this section or s. 376.3073, unless the department finds the amount involved too small or the likelihood of recovery too uncertain. For the purposes of s. 95.11, the limitation period within which to institute an action to recover such sums shall begin on the last date on which such sums were expended and not the date on which the discharge occurred. (c)1. The department may perform financial and technical audits in order to verify site restoration costs and ensure compliance with this chapter. The department shall seek recovery of any overpayment based on the findings of the audits. The department must begin an audit within 5 years after the date of payment for costs incurred at a facility, except in cases where the department alleges specific facts indicating fraud. 2. Upon determination by the department that any portion of costs that have been paid from the fund is disallowed, the department shall provide written notice to the recipient of the payment specifying the allegations of fact that justify the department’s proposed action and ordering repayment of disallowed costs within 60 days after receipt of such notice. 3. If the recipient does not make payment to the department within 60 days after receipt of such notice, the department shall seek recovery in a court of competent jurisdiction to recover the overpayment, unless the department finds the amount involved too small or the likelihood of recovery too uncertain. 4. In addition to the amount of the overpayment, the recipient is liable to the department for interest of 1 percent per month or the prime rate, whichever is less, on the amount of the overpayment from the date of the overpayment by the department until the recipient satisfies the department’s request for repayment pursuant to this paragraph. The accrual of interest shall be tolled during the pendency of any litigation. (d) Claims that accrued under former reimbursement or preapproval programs are expressly preserved. (e) If the department initiates an enforcement action to clean up a contaminated site and determines that the responsible party cannot financially undertake complete restoration of the contaminated site, that the current property owner was not responsible for the discharge when the contamination first occurred, or that the state’s interest can best be served by conducting cleanup, the department may enter into an agreement with the responsible party or property owner whereby the department agrees to conduct site rehabilitation and the responsible party or property owner agrees to pay for the portion of the cleanup costs that are within such party’s or owner’s financial capabilities as determined by the department, taking into consideration the party’s or owner’s net worth and the economic impact on the party or owner.
(9) INVESTMENTS; INTEREST. — Moneys in the fund which are not needed currently to meet the obligations of the department in the exercise of its responsibilities under this section and s. 376.3073 shall be deposited with the Chief Financial Officer to the credit of the fund and may be invested in such manner as provided by law. The interest received on such investment shall be credited to the fund. Any provisions of law to the contrary notwithstanding, such interest may be freely transferred between the trust fund and the Water Quality Assurance Trust Fund in the discretion of the department.
(10) EARLY DETECTION INCENTIVE PROGRAM. — To encourage early detection, reporting, and cleanup of contamination from leaking petroleum storage systems, the department shall, within the guidelines established in this subsection, conduct an incentive program which provides for a 30-month grace period ending on December 31, 1988. (a) The department shall establish reasonable requirements for the written reporting of petroleum contamination incidents and shall distribute forms to registrants under s. 376.303(1)(b) and to other interested parties upon request to be used for such purpose. Until such forms are available for distribution, the department shall take reports of such incidents, however made, but shall notify any person making such a report that a complete written report of the incident will be required by the department at a later time, the form for which will be provided by the department. (b) When reporting forms become available for distribution, all sites involving incidents of contamination from petroleum storage systems initially reported to the department at any time from midnight on June 30, 1986, to midnight on December 31, 1988, shall be qualified sites if a complete written report is filed with respect thereto within a reasonable time. Subject to the delays which may occur as a result of the prioritization of sites under paragraph (5)(a) for any qualified site, costs for activities described in paragraphs (4)(a)-(e) shall be absorbed at the expense of the fund, without recourse to reimbursement or recovery, with the following exceptions: 1. This subsection does not apply to a site where the department has been denied site access to implement this section. 2. This subsection does not authorize or require reimbursement from the fund for costs expended before the beginning of the grace period. 3.a. Upon discovery by the department that the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system; has, with willful intent to conceal the existence of a serious discharge, falsified inventory or reconciliation records maintained with respect to the site at which such system is located; or has intentionally damaged such petroleum storage system, the site at which such system is located shall be ineligible for participation in the incentive program and the owner shall be liable for all costs due to discharges from petroleum storage systems at that site, any other provisions of chapter 86-159, Laws of Florida, to the contrary notwithstanding. For the purposes of this paragraph, willful failure to maintain inventory and reconciliation records, willful failure to make monthly monitoring system checks where such systems are in place, and failure to meet monitoring and retrofitting requirements within the schedules established under chapter 62-761, Florida Administrative Code, or violation of similar rules adopted by the department under this chapter, constitutes gross negligence in the maintenance of a petroleum storage system. b. The department shall redetermine the eligibility of petroleum storage systems for which a timely Early Detection Incentive Program application was filed, but which were deemed ineligible by the department, under the following conditions: (I) The owner or operator, on or before March 31, 1991, shall submit, in writing, notification that the storage system is now in compliance with department rules adopted pursuant to s. 376.303, and which requests the department to reevaluate the storage system eligibility; and (II) The department verifies the storage system compliance based on a compliance inspection. A site may be determined eligible by the department for good cause shown, including, but not limited to, demonstration by the owner or operator that to achieve compliance would cause an increase in the potential for the spread of the contamination. c. Redetermination of eligibility pursuant to sub-subparagraph b. shall not be available to: (I) Petroleum storage systems owned or operated by the Federal Government. (II) Facilities that denied site access to the department. (III) Facilities where a discharge was intentionally concealed. (IV) Facilities that were denied eligibility due to: (A) Absence of contamination, unless any such facility subsequently establishes that contamination did exist at that facility on or before December 31, 1988. (B) Contamination from substances that were not petroleum or a petroleum product. (C) Contamination that was not from a petroleum storage system. d. Applicants who demonstrate compliance for a site pursuant to sub-subparagraph b. are eligible for the Early Detection Incentive Program and site rehabilitation funding pursuant to subsections (5) and (6). If, in order to avoid prolonged delay, the department in its discretion deems it necessary to expend sums from the fund to cover ineligible sites or costs as set forth in this paragraph, the department may do so and seek recovery and reimbursement therefor in the same manner and pursuant to the same procedures established for recovery and reimbursement of sums otherwise owed to or expended from the fund. (c) A report of a discharge made to the department by a person pursuant to this subsection or rules adopted pursuant to this subsection may not be used directly as evidence of liability for such discharge in any civil or criminal trial arising out of the discharge. (d) This subsection does not apply to petroleum storage systems owned or operated by the Federal Government.
(11) VIOLATIONS; PENALTY. — A person may not: (a) Falsify inventory or reconciliation records maintained in compliance with chapters 62-761 and 62-762, Florida Administrative Code, with willful intent to conceal the existence of a serious leak; or (b) Intentionally damage a petroleum storage system. A person convicted of such a violation is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(12) SITE CLEANUP. — (a) Voluntary cleanup. — This section does not prohibit a person from conducting site rehabilitation through his or her own personnel or through responsible response action contractors or subcontractors when such person is not seeking site rehabilitation funding from the fund. Such voluntary cleanups must meet all applicable environmental standards. (b) Low-scored site initiative. — Notwithstanding subsections (5) and (6), a site with a priority ranking score of 29 points or less may voluntarily participate in the low-scored site initiative regardless of whether the site is eligible for state restoration funding. 1. To participate in the low-scored site initiative, the property owner, or a responsible party who provides evidence of authorization from the property owner, must submit a “No Further Action” proposal and affirmatively demonstrate that the conditions imposed under subparagraph 4. are met. 2. Upon affirmative demonstration that the conditions imposed under subparagraph 4. are met, the department shall issue a site rehabilitation completion order incorporating the “No Further Action” proposal submitted by the property owner or the responsible party, who must provide evidence of authorization from the property owner. If no contamination is detected, the department may issue a site rehabilitation completion order. 3. Sites that are eligible for state restoration funding may receive payment of costs for the low-scored site initiative as follows: a. A property owner, or a responsible party who provides evidence of authorization from the property owner, may submit an assessment and limited remediation plan designed to affirmatively demonstrate that the site meets the conditions imposed under subparagraph 4. Notwithstanding the priority ranking score of the site, the department may approve the cost of the assessment and limited remediation, including up to 12 months of groundwater monitoring and 12 months of limited remediation activities in one or more task assignments or modifications thereof, not to exceed the threshold amount provided in s. 287.017 for CATEGORY TWO, for each site where the department has determined that the assessment and limited remediation, if applicable, will likely result in a determination of “No Further Action.” The department may not pay the costs associated with the establishment of institutional or engineering controls other than the costs associated with a professional land survey or a specific purpose survey, if such is needed, and the costs associated with obtaining a title report and paying recording fees. b. After the approval of initial site assessment results provided pursuant to state funding under sub-subparagraph a., the department may approve an additional amount not to exceed the threshold amount provided in s. 287.017 for CATEGORY TWO for limited remediation needed to achieve a determination of “No Further Action.” c. The assessment and limited remediation work shall be completed no later than 15 months after the department authorizes the start of a state-funded, low-score site initiative task. If groundwater monitoring is required after the assessment and limited remediation in order to satisfy the conditions under subparagraph 4., the department may authorize an additional 12 months to complete the monitoring. d. No more than $15 million for the low-scored site initiative may be encumbered from the fund in any fiscal year. Funds shall be made available on a first-come, first-served basis and shall be limited to 10 sites in each fiscal year for each property owner or each responsible party who provides evidence of authorization from the property owner. e. Program deductibles, copayments, and the limited contamination assessment report requirements under paragraph (13)(d) do not apply to expenditures under this paragraph. 4. The department shall issue an order incorporating the “No Further Action” proposal submitted by a property owner or a responsible party who provides evidence of authorization from the property owner upon affirmative demonstration that all of the following conditions are met: a. Soil saturated with petroleum or petroleum products, or soil that causes a total corrected hydrocarbon measurement of 500 parts per million or higher for the Gasoline Analytical Group or 50 parts per million or higher for the Kerosene Analytical Group, as defined by department rule, does not exist onsite as a result of a release of petroleum products. b. A minimum of 12 months of groundwater monitoring indicates that the plume is shrinking or stable. c. The release of petroleum products at the site does not adversely affect adjacent surface waters, including their effects on human health and the environment. d. The area containing the petroleum products’ chemicals of concern: (I) Is confined to the source property boundaries of the real property on which the discharge originated, unless the property owner has requested or authorized a more limited area in the “No Further Action” proposal submitted under this subsection; or (II) Has migrated from the source property onto or beneath a transportation facility as defined in s. 334.03(30) for which the department has approved, and the governmental entity owning the transportation facility has agreed to institutional controls as defined in s. 376.301(21). This sub-sub-subparagraph does not, however, impose any legal liability on the transportation facility owner, obligate such owner to engage in remediation, or waive such owner’s right to recover costs for damages. e. The groundwater contamination containing the petroleum products’ chemicals of concern is not a threat to any permitted potable water supply well. f. Soils onsite found between land surface and 2 feet below land surface which are subject to human exposure meet the soil cleanup target levels established in subparagraph (5)(b)9., or human exposure is limited by appropriate institutional or engineering controls. Issuance of a site rehabilitation completion order under this paragraph acknowledges that minimal contamination exists onsite and that such contamination is not a threat to the public health, safety, or welfare; water resources; or the environment. Pursuant to subsection (4), the issuance of the site rehabilitation completion order, with or without conditions, does not alter eligibility for state-funded rehabilitation that would otherwise be applicable under this section.
(13) PETROLEUM CLEANUP PARTICIPATION PROGRAM. — To encourage detection, reporting, and cleanup of contamination caused by discharges of petroleum or petroleum products, the department shall, within the guidelines established in this subsection, implement a cleanup program to provide rehabilitation funding assistance for all property contaminated by discharges of petroleum or petroleum products from a petroleum storage system occurring before January 1, 1995. Eligibility is subject to an annual appropriation from the fund. Additionally, funding for eligible sites is contingent upon annual appropriation in subsequent years. Such continued state funding is not an entitlement or a vested right under this subsection. Eligibility shall be determined in the program, notwithstanding any other provision of law, consent order, order, judgment, or ordinance to the contrary. (a)1. The department shall accept any discharge reporting form received before January 1, 1995, as an application for this program, and the facility owner or operator need not reapply. 2. Regardless of whether ownership has changed, owners or operators of property that is contaminated by petroleum or petroleum products from a petroleum storage system may apply for such program by filing a written report of the contamination incident, including evidence that such incident occurred before January 1, 1995, with the department. Incidents of petroleum contamination discovered after December 31, 1994, at sites which have not stored petroleum or petroleum products for consumption, use, or sale after such date shall be presumed to have occurred before January 1, 1995. An operator’s filed report shall be an application of the owner for all purposes. (b) Subject to annual appropriation from the fund, sites meeting the criteria of this subsection are eligible for up to $400,000 of site rehabilitation funding assistance in priority order pursuant to subsections (5) and (6). Sites meeting the criteria of this subsection for which a site rehabilitation completion order was issued before June 1, 2008, do not qualify for the 2008 increase in site rehabilitation funding assistance and are bound by the pre-June 1, 2008, limits. Sites meeting the criteria of this subsection for which a site rehabilitation completion order was not issued before June 1, 2008, regardless of whether they have previously transitioned to nonstate-funded cleanup status, may continue state-funded cleanup pursuant to this section until a site rehabilitation completion order is issued or the increased site rehabilitation funding assistance limit is reached, whichever occurs first. The department may not pay expenses incurred beyond the scope of an approved contract. (c) The department may also approve supplemental funding of up to $100,000 for additional remediation and monitoring if such remediation and monitoring is necessary to achieve a determination of “No Further Action.” (d) Upon notification by the department that rehabilitation funding assistance is available for the site pursuant to subsections (5) and (6), the property owner, operator, or person otherwise responsible for site rehabilitation shall provide the department with a limited contamination assessment report and shall enter into a Petroleum Cleanup Participation Program site rehabilitation agreement with the department. The limited contamination assessment report must be sufficient to support the proposed course of action and to estimate the cost of the proposed course of action. The agreement must provide for a 25-percent cost savings to the department; a copayment by the owner, operator, or person otherwise responsible for conducting site rehabilitation; or a combination of cost savings and a copayment. Cost savings to the department may be demonstrated in the form of reduced rates by the proposed agency term contractor or the difference in cost associated with a Risk Management Options Level I closure versus a Risk Management Options Level II closure. For the purpose of this paragraph, the term: 1. “Risk Management Options Level I” means a “No Further Action” closure without institutional controls or without institutional and engineering controls. This closure option applies subject to conditions in department rules and agreements. 2. “Risk Management Options Level II” means a “No Further Action” closure where institutional controls and, if appropriate, engineering controls apply if the controls are protective of human health, public safety, and the environment. This closure option applies subject to conditions in department rules and agreements. (e) A report of a discharge made to the department by a person pursuant to this subsection or any rules adopted pursuant to this subsection may not be used directly as evidence of liability for such discharge in any civil or criminal trial arising out of the discharge. (f) This subsection does not preclude the department from pursuing penalties under s. 403.141 for violations of any law or any rule, order, permit, registration, or certification adopted or issued by the department pursuant to its lawful authority. (g) Upon the filing of a discharge reporting form under paragraph (a), the department or local government may not pursue any judicial or enforcement action to compel rehabilitation of the discharge. This paragraph does not prevent any such action with respect to discharges determined ineligible under this subsection or to sites for which rehabilitation funding assistance is available pursuant to subsections (5) and (6). (h) The following are excluded from participation in the program: 1. Sites at which the department has been denied reasonable site access to implement this section. 2. Sites that were active facilities when owned or operated by the Federal Government. 3. Sites that are identified by the United States Environmental Protection Agency to be on, or which qualify for listing on, the National Priorities List under Superfund. This exception does not apply to those sites for which eligibility has been requested or granted as of the effective date of this act under the Early Detection Incentive Program established pursuant to s. 15, chapter 86-159, Laws of Florida. 4. Sites for which contamination is covered under the Early Detection Incentive Program, the Abandoned Tank Restoration Program, or the Petroleum Liability and Restoration Insurance Program, in which case site rehabilitation funding assistance shall continue under the respective program. 1 (i) Notwithstanding this section, for the 2025-2026 fiscal year, program deductibles and copayments may not be assessed, monetary caps may not be enforced, and all costs for activities described in this subsection must be absorbed at the expense of the Inland Protection Trust Fund, without recourse to reimbursement or recovery, with the following exceptions: 1. This paragraph does not apply to a site where the department has been denied site access to implement this section. 2. This paragraph does not authorize or require reimbursement from the fund for costs expended before the beginning of the grace period. 3. Upon discovery by the department that the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system; has, with willful intent to conceal the existence of a serious discharge, falsified inventory or reconciliation records maintained with respect to the site at which such system is located; or has intentionally damaged such petroleum storage system, the site at which such system is located is ineligible for participation in the incentive program and the owner is liable for all costs due to discharges from petroleum storage systems at that site. This paragraph expires July 1, 2026.
(14) LEGISLATIVE APPROVAL AND AUTHORIZATION. — Before the department enters into a service contract with the Inland Protection Financing Corporation which includes payments by the department to support any existing or planned note, bond, certificate of indebtedness, or other obligation or evidence of indebtedness of the corporation pursuant to s. 376.3075, the Legislature, by law, must specifically authorize the department to enter into such a contract. The corporation may issue bonds in an amount not to exceed $104 million, with a term up to 15 years, and annual payments not in excess of $10.4 million. The department may enter into a service contract in conjunction with the issuance of such bonds which provides for annual payments for debt service payments or other amounts payable with respect to bonds, plus any administrative expenses of the corporation to finance the rehabilitation of petroleum contamination sites pursuant to ss. 376.30-376.317.
(15) ETHANOL OR BIODIESEL DAMAGE; PREVENTIVE MEASURES. — The department shall pay, pursuant to this subsection, up to $10 million each fiscal year from the fund for the costs of labor and equipment to repair or replace petroleum storage systems that may have been damaged due to the storage of fuels blended with ethanol or biodiesel, or for preventive measures to reduce the potential for such damage. (a) A petroleum storage system owner or operator may request payment from the department for the repair or replacement of petroleum storage tanks, integral piping, or ancillary equipment that may have been damaged, or is subject to damage, by the storage of fuels blended with ethanol or biodiesel or for other preventive measures to ensure compatibility with ethanol or biodiesel in accordance with the following procedures: 1. The petroleum storage system owner or operator may submit a request for payment to the department along with the following information: a. An affidavit from a petroleum storage system specialty contractor attesting to an opinion that the petroleum storage system may have been damaged as a result of the storage of fuel blended with ethanol or biodiesel or may not be compatible with fuels containing ethanol or biodiesel, or a combination of both. The affidavit must also include a proposal from the specialty contractor for repair or replacement of the equipment, or for the implementation of other preventive measures to reduce the probability of damage. If the specialty contractor proposes replacement of any equipment, the affidavit must include the reasons that repair or other preventive measures are not technically or economically feasible or practical. b. Copies of any inspection reports, including photographs, prepared by the specialty contractor or department or local program inspectors documenting the damage or potential for damage to the petroleum storage system. c. A proposal from the specialty contractor showing the proposed scope of the repair, replacement, or other preventive measures, including a detailed list of labor, equipment, and other associated costs. In the case of replacement or repair, the proposal must also include provisions for any preventive measures needed to prevent a recurrence of the damage, such as the use of corrosion inhibitors, the application of coatings compatible with ethanol or biodiesel, as appropriate, and the adoption of a maintenance plan. d. For proposals to replace storage tanks or piping, a statement from a certified public accountant indicating the depreciated value of the tanks or piping proposed for replacement. Applications for such proposals must also include documentation of the age of the storage tank or piping. Historical tank registration records may be used to determine the age of the storage tank and piping. The depreciated value shall be the maximum allowable replacement cost for the storage tank and piping, exclusive of labor costs. For the purposes of this paragraph, tanks that are 20 years old or older are deemed to be fully depreciated and have no replacement value. 2. The department shall review applications for completeness, accuracy, and the reasonableness of costs and scope of work. Within 30 days after receipt of an application, the department must approve or deny the application, propose modification to the application, or request additional information. (b) If an application is approved, the department shall issue a purchase order to the petroleum storage system owner or operator. The purchase order shall: 1. Reflect a payment due to the owner for the cost of the scope of work approved by the department, less a deductible of 25 percent. 2. State that a payment is not due to the owner pursuant to the purchase order until the scope of work authorized by the department has been completed in substantial conformity with the purchase order. 3. Except for preventive maintenance contracts, specify that the work authorized in the purchase order must be substantially completed and paid for by the petroleum storage system owner or operator within 180 days after the date of the purchase order. After such time, the purchase order is void. 4. For preventive maintenance contracts, the department shall develop a maintenance completion and payment schedule for approved applicants. The failure of an owner or operator to meet scheduled payments shall invalidate the purchase order for all future payments due pursuant to the order. (c)1. Except for maintenance contracts, the applicant may request that the department make payment following completion of the work authorized by the department, in accordance with the terms of the purchase order. The request must include a sufficient demonstration that the work has been completed in substantial compliance with the purchase order and that the costs have been fully paid. Upon such a showing, the department must issue the payment pursuant to the terms of the purchase order. 2. For maintenance contracts, the department must make periodic payments pursuant to the schedule specified in the purchase order upon satisfactory showing that maintenance work has been completed and costs have been paid by the owner or operator as specified in the purchase order. (d) The department may develop forms to be used for application and payment procedures. Until such forms are developed, an applicant may submit the required information in any format, as long as the documentation is complete. (e) The department may request the assistance of the Department of Management Services or a third-party administrator to assist in the administration of the application and payment process. Any costs associated with this administration shall be paid from the funds identified in this section. (f) This subsection does not affect the obligations of facility owners or operators or petroleum storage system owners or operators to timely comply with department rules regarding the maintenance, replacement, and repair of petroleum storage systems in order to prevent a release or discharge of pollutants. 2 (g) Payments may not be made for the following: 1. Proposal costs or costs related to preparation of the application and required documentation; 2. Certified public accountant costs; 3. Except as provided in paragraph (j), any costs in excess of the amount approved by the department under paragraph (b) or which are not in substantial compliance with the purchase order; 4. Costs associated with storage tanks, piping, or ancillary equipment that has previously been repaired or replaced for which costs have been paid under this section; 5. Facilities that are not in compliance with department storage tank rules, until the noncompliance issues have been resolved; or 6. Costs associated with damage to petroleum storage systems caused in whole or in part by causes other than the storage of fuels blended with ethanol or biodiesel. (h) Applications may be submitted on a first-come, first-served basis. However, the department may not issue purchase orders unless funds remain for the current fiscal year. (i) A petroleum storage system owner or operator may not receive more than $200,000 annually for equipment replacement, repair, or preventive measures at any single facility, or $500,000 annually in aggregate for all facilities owned or operated by the owner or operator it owns or operates. (j) Owners or operators that have incurred costs for repair, replacement, or other preventive measures as described in this subsection during the period of July 1, 2015, through June 30, 2019, may apply to request payment for such costs from the department using the procedure in paragraphs (b), (c), and (d). The department may not disburse payment for approved applications for such work until all purchase orders for previously approved applications have been paid and unless funds remain available for the fiscal year. Such payment is subject to a deductible of 25 percent of the cost of the scope of work approved by the department under this paragraph. (k) For new petroleum requirement registrations after July 1, 2019, the department shall only register equipment that meets applicable standards for compatibility for ethanol blends, biodiesel blends, and other alternative fuels that are likely to be stored in such systems.
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Florida § 376.3071, Counsel Stack Legal Research, https://law.counselstack.com/statute/fl/376.3071.