376.30711 Preapproved site rehabilitation, effective March 29, 1995.—
(1)(a) The Legislature finds and declares that the petroleum contamination site rehabilitation program, as previously structured, has resulted in site rehabilitation proceeding at a higher rate than revenues can support and at sites that are not of the highest priority as established in s. 376.3071(5). This has resulted in a large backlog of reimbursement applications and excessive costs to the Inland Protection Trust Fund. It is the intent of the Legislature that contamination site cleanups be conducted on a preapproved basis with emphasis on addressing first the sites which pose the greatest threat to human health 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 and will significantly reduce the contamination or eliminate the spread of contamination, shall be considered to protect public health and safety, water resources, and the environment.
(b) Site rehabilitation work on sites eligible for state-funded cleanup from the Inland Protection Trust Fund and pursuant to ss. 376.305(6), 376.3071, 376.3072, and 376.3073, shall only be eligible for site rehabilitation funding under this section. After March 29, 1995, only persons who have received prior written approval from the department of the scope of work and costs may continue site rehabilitation work. In the event of a new release, the facility operator shall be required to abate the source of the discharge. If free product is present, the operator shall notify the department, which may direct the removal of the free product as a preapproved expense pursuant to this section. The department shall grant approval to continue site rehabilitation based on this section and s. 376.3071(5).
(2)(a) Competitive bidding pursuant to this section shall not be subject to the requirements of s. 287.055. The department is authorized to use competitive bid procedures or negotiated contracts for preapproving all costs and rehabilitation procedures for site-specific rehabilitation projects through performance-based contracts. Site rehabilitation shall be conducted according to the priority ranking order established pursuant to s. 376.3071(5).
(b) Any contractor performing site rehabilitation program tasks must demonstrate to the department that:
1. The contractor meets all certification and license requirements imposed by law.
2. The contractor has obtained approval of its Comprehensive Quality Assurance Plan prepared under department rules.
(c) The contractor shall certify to the department that such contractor:
1. Complies with applicable OSHA regulations.
2. Maintains workers’ compensation insurance for all 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, as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damage which may arise from performance of work under the program, designating 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 completed and submitted a sworn statement under s. 287.133(3)(a), on public entity crimes.
6. Has the capacity to perform or directly supervise the majority of the work at a site in accordance with s. 489.113(9).
(3) Any person responsible for site rehabilitation who received prior approval to conduct site rehabilitation and to thereafter submit an application for reimbursement, pursuant to s. 2(3), chapter 95-2, Laws of Florida, may request approval to conduct site rehabilitation pursuant to this section regardless of the site score.
(4) Any person responsible for site rehabilitation at a site with a priority ranking score of 50 points or more who was performing remedial action activities pursuant to s. 2(2), chapter 95-2, Laws of Florida, may request approval to complete site rehabilitation pursuant to this section in order to avoid disruption in cleanup activities.
(5)(a) Any person who performs the conditions of a preapproved site rehabilitation agreement, pursuant to the provisions of this section and s. 376.3071(5), may file invoices with the department for payment within the schedule and for the services described in the preapproved site rehabilitation agreement. Such invoices for payment must be submitted to the department on forms provided by the department, together with evidence documenting that preapproved activities were conducted or completed in accordance with the preapproved authorization. Provided there are sufficient unencumbered funds available in the Inland Protection Trust Fund which have been appropriated for expenditure by the Legislature and provided all of the terms of the preapproved site rehabilitation agreement have been met, invoices for payment shall be paid consistent with the provisions of s. 215.422. After an applicant has submitted its invoices to the department and before payment is made, the contractor may assign its right to payment to any other person, without recourse of the assignee or assignor to the state, and in such cases the assignee shall be paid consistent with the provisions of s. 215.422. Prior notice of the assignment and assignment information shall be made to the department, which notice shall be signed and notarized by the assigning party. The department shall not have the authority to regulate private financial transactions by which an applicant seeks to account for working capital or the time value of money, unless charges associated with such transactions are added as a separate charge in an invoice.
(b) 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 a preapproved site rehabilitation agreement.
(c) Payments shall be made by the department based on the terms of a 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 assure performance. The amount of retainage or performance bond or bonds, as well as the terms and conditions, shall be a part of the site-specific performance-based contract.
(d) Contractors or persons to which the contractor has assigned its right to payment pursuant to paragraph (a) shall make prompt payment to subcontractors and suppliers for their costs associated with a preapproved site rehabilitation agreement pursuant to s. 287.0585(1).
(e) The exemption in s. 287.0585(2) shall not apply to payments associated with a preapproved site rehabilitation agreement.
(f) The department shall provide certification within 30 days after notification from a contractor that the terms of the contract for site rehabilitation work have been completed. Failure of the department to do so shall not constitute a default certification of completion. The department also may withhold payment if the validity or accuracy of the contractor’s invoices or supporting documents is in question.
(g) Nothing in this section shall be construed to authorize payment to any 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.
(h) If any contractor fails to perform, as determined by the department, contractual duties for site rehabilitation program tasks, the department shall terminate the contractor’s eligibility for participation in the program.
(i) The contractor responsible for conducting site rehabilitation shall keep and preserve suitable records in accordance with the provisions of s. 376.3071(12)(e).
(6) It is unlawful for a site owner or operator, or his or her designee, to receive any remuneration, in cash or in kind, directly or indirectly, from a rehabilitation contractor performing site cleanup activities pursuant to this section.
(7) The department shall select five sites eligible for state restoration funding assistance under this section, each having a low-priority ranking score pursuant to s. 376.3071(5), for an innovative technology pilot program. Such sites shall be representative of varying geographic, geophysical, and petroleum-contaminated conditions. Utilizing the department’s list of mechanical, chemical, and biological products and processes which have already been deemed acceptable from an environmental, regulatory, and safety standpoint, the department shall select innovative products and processes, based upon competitive bid procedures per subsection (2), to be utilized on pilot project sites.
History.—s. 2, ch. 95-2; s. 6, ch. 96-277; s. 61, ch. 97-100; s. 15, ch. 97-277; s. 26, ch. 99-5; s. 178, ch. 99-13; s. 2, ch. 99-376; s. 2, ch. 2008-127.