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Senate Bill 1512

Senate Bill sb1512

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 1512

    By Senator Lawson





    6-1128-04

  1                      A bill to be entitled

  2         An act relating to pollution control; amending

  3         s. 376.121, F.S., relating to liability for

  4         damage to natural resources; conforming

  5         provisions to the transfer of the Game and

  6         Fresh Water Fish Commission to the Fish and

  7         Wildlife Conservation Commission; amending s.

  8         376.30713, F.S.; eliminating obsolete

  9         provisions that require the Department of

10         Environmental Protection to report on

11         preapproved advanced cleanup projects;

12         providing an effective date.

13  

14  Be It Enacted by the Legislature of the State of Florida:

15  

16         Section 1.  Subsection (10) of section 376.121, Florida

17  Statutes, is amended to read:

18         376.121  Liability for damage to natural

19  resources.--The Legislature finds that extensive damage to the

20  state's natural resources is the likely result of a pollutant

21  discharge and that it is essential that the state adequately

22  assess and recover the cost of such damage from responsible

23  parties.  It is the state's goal to recover the costs of

24  restoration from the responsible parties and to restore

25  damaged natural resources to their predischarge condition.  In

26  many instances, however, restoration is not technically

27  feasible.  In such instances, the state has the responsibility

28  to its citizens to recover the cost of all damage to natural

29  resources.  To ensure that the public does not bear a

30  substantial loss as a result of the destruction of natural

31  resources, the procedures set out in this section shall be

                                  1

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1  used to assess the cost of damage to such resources.  Natural

 2  resources include coastal waters, wetlands, estuaries, tidal

 3  flats, beaches, lands adjoining the seacoasts of the state,

 4  and all living things except human beings.  The Legislature

 5  recognizes the difficulty historically encountered in

 6  calculating the value of damaged natural resources.  The value

 7  of certain qualities of the state's natural resources is not

 8  readily quantifiable, yet the resources and their qualities

 9  have an intrinsic value to the residents of the state, and any

10  damage to natural resources and their qualities should not be

11  dismissed as nonrecoverable merely because of the difficulty

12  in quantifying their value.  In order to avoid unnecessary

13  speculation and expenditure of limited resources to determine

14  these values, the Legislature hereby establishes a schedule

15  for compensation for damage to the state's natural resources

16  and the quality of said resources.

17         (10)  For discharges of more than 30,000 gallons, the

18  department shall, in consultation with the Fish and Wildlife

19  Conservation Commission Game and Fresh Water Fish Commission,

20  adopt rules by July 1, 1994, to assess compensation for the

21  damage to natural resources based upon the cost of restoring,

22  rehabilitating, replacing, or acquiring the equivalent of the

23  damaged natural resources; the diminution in the value of

24  those resources pending restoration; and the reasonable cost

25  of assessing those damages. The person responsible for a

26  discharge shall be given an opportunity to consult with the

27  department on the assessment design and restoration program.

28         (a)  For discharges greater than 30,000 gallons, the

29  person responsible has the option to pay the amount of

30  compensation calculated pursuant to the compensation schedule

31  established in subsection (4) or pay the amount determined by

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1  a damage assessment performed by the department. If the person

 2  responsible for the discharge elects to have a damage

 3  assessment performed, then such person shall notify the

 4  department in writing of such decision within 15 days after

 5  the discovery of the discharge. The decision to have a damage

 6  assessment performed to determine compensation for a discharge

 7  shall be final; the person responsible for a discharge may not

 8  later elect to use the compensation schedule for computing

 9  compensation. Failure to make such notice shall result in the

10  amount of compensation for the total damage to natural

11  resources being calculated based on the compensation schedule.

12  The compensation shall be paid within 90 days after receipt of

13  a written request from the department.

14         (b)  In the event the person responsible for a

15  discharge greater than 30,000 gallons elects to have a damage

16  assessment performed, said person shall pay to the department

17  an amount equal to the compensation calculated pursuant to

18  subsection (4) for the discharge using a volume of 30,000

19  gallons. The payment shall be made within 90 days after

20  receipt of a written request from the department.

21         (c)  After completion of the damage assessment, the

22  department shall advise the person responsible for the

23  discharge of the amount of compensation due to the state. A

24  credit shall be given for the amount paid pursuant to

25  paragraph (b). Payment shall be made within 90 days after

26  receipt of a written request from the department. In no event

27  shall the total compensation paid pursuant to this section be

28  less than the dollar amount calculated pursuant to paragraph

29  (b).

30         Section 2.  Section 376.30713, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1         376.30713  Preapproved advanced cleanup.--

 2         (1)  In addition to the legislative findings provided

 3  in s. 376.30711, the Legislature finds and declares:

 4         (a)  That the inability to conduct site rehabilitation

 5  in advance of a site's priority ranking pursuant to s.

 6  376.3071(5)(a) may substantially impede or prohibit property

 7  transactions or the proper completion of public works

 8  projects.

 9         (b)  While the first priority of the state is to

10  provide for protection of the water resources of the state,

11  human health, and the environment, the viability of commerce

12  is of equal importance to the state.

13         (c)  It is in the public interest and of substantial

14  economic benefit to the state to provide an opportunity for

15  site rehabilitation to be conducted on a limited basis at

16  contaminated sites, in advance of the site's priority ranking,

17  to facilitate property transactions or public works projects.

18         (d)  It is appropriate for persons responsible for site

19  rehabilitation to share the costs associated with managing and

20  conducting preapproved advanced cleanup, to facilitate the

21  opportunity for preapproved advanced cleanup, and to mitigate

22  the additional costs that will be incurred by the state in

23  conducting site rehabilitation in advance of the site's

24  priority ranking.  Such cost sharing will result in more

25  contaminated sites being cleaned up and greater environmental

26  benefits to the state. The provisions of this section shall

27  only be available for sites eligible for restoration funding

28  under EDI, ATRP, or PLIRP.

29         (2)  The department is authorized to approve an

30  application for preapproved advanced cleanup at eligible

31  sites, prior to funding based on the site's priority ranking

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    Florida Senate - 2004                                  SB 1512
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 1  established pursuant to s. 376.3071(5)(a), in accordance with

 2  the provisions of this section.  Persons who qualify as an

 3  applicant under the provisions of this section shall only

 4  include the facility owner or operator or the person otherwise

 5  responsible for site rehabilitation.

 6         (a)  Preapproved advanced cleanup applications may be

 7  submitted between May 1 and June 30 and between November 1 and

 8  December 31 of each fiscal year.  Applications submitted

 9  between May 1 and June 30 shall be for the fiscal year

10  beginning July 1. An application shall consist of:

11         1.  A commitment to pay no less than 25 percent of the

12  total cleanup cost deemed recoverable under the provisions of

13  this section along with proof of the ability to pay the cost

14  share.

15         2.  A nonrefundable review fee of $250 to cover the

16  administrative costs associated with the department's review

17  of the application.

18         3.  A limited contamination assessment report.

19         4.  A proposed course of action.

20  

21  The limited contamination assessment report shall be

22  sufficient to support the proposed course of action and to

23  estimate the cost of the proposed course of action.  Any costs

24  incurred related to conducting the limited contamination

25  assessment report are not refundable from the Inland

26  Protection Trust Fund. Site eligibility under this subsection,

27  or any other provision of this section, shall not constitute

28  an entitlement to preapproved advanced cleanup or continued

29  restoration funding.  The applicant shall certify to the

30  department that the applicant has the prerequisite authority

31  to enter into a preapproved advanced cleanup contract with the

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1  department.  This certification shall be submitted with the

 2  application.

 3         (b)  The department shall rank the applications based

 4  on the percentage of cost-sharing commitment proposed by the

 5  applicant, with the highest ranking given to the applicant

 6  that proposes the highest percentage of cost sharing.  If the

 7  department receives applications that propose identical

 8  cost-sharing commitments and which exceed the funds available

 9  to commit to all such proposals during the preapproved

10  advanced cleanup application period, the department shall

11  proceed to rerank those applicants.  Those applicants

12  submitting identical cost-sharing proposals which exceed

13  funding availability shall be so notified by the department

14  and shall be offered the opportunity to raise their individual

15  cost-share commitments, in a period of time specified in the

16  notice.  At the close of the period, the department shall

17  proceed to rerank the applications in accordance with this

18  paragraph.

19         (3)(a)  Based on the ranking established under

20  paragraph (2)(b) and the funding limitations provided in

21  subsection (4), the department shall commence negotiation with

22  such applicants.  If the department and the applicant agree on

23  the course of action, the department may enter into a contract

24  with the applicant.  The department is authorized to negotiate

25  the terms and conditions of the contract.

26         (b)  Preapproved advanced cleanup shall be conducted

27  under the provisions of ss. 376.3071(5)(b) and 376.30711.  If

28  the terms of the preapproved advanced cleanup contract are not

29  fulfilled, the applicant forfeits any right to future payment

30  for any site rehabilitation work conducted under the contract.

31  

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1         (c)  The department's decision not to enter into a

 2  preapproved advanced cleanup contract with the applicant shall

 3  not be subject to the provisions of chapter 120.  If the

 4  department is not able to complete negotiation of the course

 5  of action and the terms of the contract within 60 days after

 6  commencing negotiations, the department shall terminate

 7  negotiations with that applicant.

 8         (4)  The department is authorized to enter into

 9  contract for a total of up to $10 million of preapproved

10  advanced cleanup work in each fiscal year.  However, no

11  facility shall be preapproved for more than $500,000 of

12  cleanup activity in each fiscal year.  For the purposes of

13  this section the term "facility" shall include, but not be

14  limited to, multiple site facilities such as airports, port

15  facilities, and terminal facilities even though such

16  enterprises may be treated as separate facilities for other

17  purposes under this chapter.

18         (5)  By December 31, 1998, the department shall submit

19  a report to the Governor, the President of the Senate, and the

20  Speaker of the House of Representatives on the progress and

21  level of activity under the provisions of this section.  The

22  report shall include the following information:

23         (a)  A list of sites under a preapproved advanced

24  cleanup contract, to be identified by the facility number.

25         (b)  The total number of preapproved advanced cleanup

26  applications submitted to the department.

27         (c)  The priority ranking scores of each participating

28  site.

29         (d)  The total amount of contract work authorized and

30  conducted for each site and the percentage and amount of cost

31  share.

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    Florida Senate - 2004                                  SB 1512
    6-1128-04




 1         (e)  The total revenues received under the provisions

 2  of this section.

 3         (f)  The annual costs of administering the provisions

 4  of this section.

 5         (g)  The recommended annual budget for the provisions

 6  of this section.

 7         (5)(6)  All funds collected by the department pursuant

 8  to this section shall be deposited into the Inland Protection

 9  Trust Fund to be used as provided in this section.

10         Section 3.  This act shall take effect upon becoming a

11  law.

12  

13            *****************************************

14                          SENATE SUMMARY

15    Corrects an obsolete reference to the Game and Fresh
      Water Fish Commission. Eliminates obsolete reporting
16    requirements for Department of Environmental Protection
      with respect to preapproved advanced cleanup of certain
17    contaminated sites.

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