Florida Statutes 376.30713 – Advanced cleanup
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(1) In addition to the legislative findings provided in s. 376.3071, the Legislature finds and declares:
(a) That the inability to conduct site rehabilitation in advance of a site’s priority ranking pursuant to s. 376.3071(5)(a) may substantially impede or prohibit property redevelopment, property transactions, or the proper completion of public works projects.
Terms Used In Florida Statutes 376.30713
- Contract: A legal written agreement that becomes binding when signed.
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
(b) While the first priority of the state is to provide for protection of the public health, safety, and welfare; water resources; and the environment, the viability of commerce is of equal importance to the state.
(c) It is in the public interest and of substantial economic benefit to the state to provide an opportunity for site rehabilitation to be conducted on a limited basis at contaminated sites, in advance of the site’s priority ranking, to encourage redevelopment and facilitate property transactions or public works projects.
(d) It is appropriate for a person who is responsible for site rehabilitation to share the costs associated with managing and conducting advanced cleanup, to facilitate the opportunity for advanced cleanup, and to mitigate the additional costs that will be incurred by the state in conducting site rehabilitation in advance of the site’s priority ranking. Such cost sharing will result in more contaminated sites being cleaned up and greater environmental benefits to the state. This section is only available for sites eligible for restoration funding under EDI, ATRP, or PLRIP. This section is available for discharges eligible for restoration funding under the petroleum cleanup participation program for the state’s cost share of site rehabilitation. Applications must include a cost-sharing commitment for this section in addition to the 25-percent-copayment requirement of the petroleum cleanup participation program. This section is not available for any discharge under a petroleum cleanup participation program where the 25-percent-copayment requirement of the petroleum cleanup participation program has been reduced or eliminated pursuant to s. 376.3071(13)(d).
(2) The department may approve an application for advanced cleanup at eligible sites, including applications submitted pursuant to paragraph (c), notwithstanding the site’s priority ranking established pursuant to s. 376.3071(5)(a), pursuant to this section. Only the facility owner or operator or the person otherwise responsible for site rehabilitation qualifies as an applicant under this section.
(a) Advanced cleanup applications may be submitted between May 1 and June 30 and between November 1 and December 31 of each fiscal year. Applications submitted between May 1 and June 30 shall be for the fiscal year beginning July 1. An application must consist of:
1. A commitment to pay 25 percent or more of the total cleanup cost deemed recoverable under this section along with proof of the ability to pay the cost share. The department shall determine whether the cost savings demonstration is acceptable. Such determination is not subject to chapter 120.
a. Applications for the aggregate cleanup of five or more sites may be submitted in one of two formats to meet the cost-share requirement:
(I) For an aggregate application proposing that the department enter into a performance-based contract, the applicant may use a commitment to pay, a demonstrated cost savings to the department, or both to meet the requirement.
(II) For an aggregate application relying on a demonstrated cost savings to the department, the applicant shall, in conjunction with the proposed agency term contractor, establish and provide in the application the percentage of cost savings in the aggregate that is being provided to the department for cleanup of the sites under the application compared to the cost of cleanup of those same sites using the current rates provided to the department by the proposed agency term contractor.
b. Applications for the cleanup of individual sites may be submitted in one of two formats to meet the cost-share requirement:
(I) For an individual application proposing that the department enter into a performance-based contract, the applicant may use a commitment to pay, a demonstrated cost savings to the department, or both to meet the requirement.
(II) For an individual application relying on a demonstrated cost savings to the department, the applicant shall, in conjunction with the proposed agency term contractor, establish and provide in the application a 25-percent cost savings to the department for cleanup of the site under the application compared to the cost of cleanup of the same site using the current rates provided to the department by the proposed agency term contractor.
2. A nonrefundable review fee of $250 to cover the administrative costs associated with the department’s review of the application.
3. A property owner or responsible party agreement in which the property owner or responsible party commits to continue to participate in the advanced cleanup program upon completion of the limited contamination assessment and finalization of the proposed course of action.
4. A conceptual proposed course of action.
5. A department site access agreement, or similar agreements approved by the department that do not violate state law, entered into with the property owner or owners, as applicable, and evidence of authorization from such owner or owners for petroleum site rehabilitation program tasks consistent with the proposed course of action where the applicant is not the property owner for any of the sites contained in the application.
6. A certification that the applicant has the prerequisite authority to enter into an advanced cleanup contract with the department. The certification must be submitted with the application.
(b) The department shall rank the applications based on the percentage of cost-sharing commitment proposed by the applicant, with the highest ranking given to the applicant who proposes the highest percentage of cost sharing. If the department receives applications that propose identical cost-sharing commitments and that exceed the funds available to commit to all such proposals during the advanced cleanup application period, the department shall proceed to rerank those applicants. Those applicants submitting identical cost-sharing proposals that exceed funding availability must be so notified by the department and offered the opportunity to raise their individual cost-share commitments, in a period specified in the notice. At the close of the period, the department shall proceed to rerank the applications pursuant to this paragraph.
(c) Applications for the advanced cleanup of individual sites scheduled for redevelopment are not subject to the application period limitations or the requirement to pay 25 percent of the total cleanup cost specified in paragraph (a) or to the cost-sharing commitment specified in paragraph (1)(d). Applications must be accepted on a first-come, first-served basis and are not subject to the ranking provisions of paragraph (b). Applications for the advanced cleanup of individual sites scheduled for redevelopment must include:
1. A nonrefundable review fee of $250 to cover the administrative costs associated with the department’s review of the application.
2. A limited contamination assessment report. The report must be sufficient to support the proposed course of action and to estimate the cost of the proposed course of action. Costs incurred related to conducting and preparing the report are not refundable from the Inland Protection Trust Fund.
3. A proposed course of action for cleanup of the site.
4. If the applicant is not the property owner for any of the sites contained in the application, a department site access agreement, or a similar agreement approved by the department and not in violation of state law, entered into with the property owner or owners, as applicable, and evidence of authorization from such owner or owners for petroleum site rehabilitation program tasks consistent with the proposed course of action.
5. A certification to the department stating that the applicant has the prerequisite authority to enter into an advanced cleanup contract with the department. The advanced cleanup contract must include redevelopment and site rehabilitation milestones.
6. Documentation, in the form of a letter from the local government having jurisdiction over the area where the site is located, which states that the local government is in agreement with or approves the proposed redevelopment and that the proposed redevelopment complies with applicable law and requirements for such redevelopment.
7. A demonstrated reasonable assurance that the applicant has sufficient financial resources to implement and complete the redevelopment project.
(d) Upon acceptance of an advanced cleanup application, the applicant’s selected agency term contractor shall submit to the department a scope of work for a limited contamination assessment. When the scope of work is negotiated and agreed upon, the department shall issue one or more purchase orders of up to $35,000 each for the limited contamination assessment. 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.
(e) Site eligibility under this section is not an entitlement to advanced cleanup funding or continued restoration funding.
(3)(a) Based on the ranking established under paragraph (2)(b), the department shall begin negotiation with such applicants. If the department and the applicant agree on the course of action, the department may enter into a contract with the applicant. The department may negotiate the terms and conditions of the contract.
(b) Advanced cleanup shall be conducted pursuant to s. 376.3071(5)(b) and (6) and rules adopted under ss. 287.0595 and 376.3071. If the terms of the advanced cleanup contract are not fulfilled, the applicant forfeits any right to future payment for any site rehabilitation work conducted under the contract.
(c) The department’s decision not to enter into an advanced cleanup contract with the applicant is not subject to chapter 120. If the department cannot complete negotiation of the course of action and the terms of the contract within 60 days after beginning negotiations, the department shall terminate negotiations with that applicant.
(4) The department may enter into contracts for a total of up to $30 million of advanced cleanup work in each fiscal year. Up to $5 million of these funds may be designated by the department for advanced cleanup of individual sites scheduled for redevelopment under paragraph (2)(c).
(a) A facility or an applicant who bundles multiple sites as specified in subparagraph (2)(a)1. may not be approved for more than $5 million of cleanup activity in each fiscal year.
(b) A facility or an applicant applying for advanced cleanup of individual sites scheduled for redevelopment pursuant to paragraph (2)(c) may not be approved for more than $1 million of cleanup activity in any one fiscal year.
(c) A property owner or responsible party may enter into a voluntary cost-share agreement in which the property owner or responsible party commits to bundle multiple sites and lists the facilities that will be included in those future bundles. The facilities listed are not subject to agency term contractor assignment pursuant to department rule. The department must reserve the right to terminate or amend the voluntary cost-share agreement for any identified site under the voluntary cost-share agreement if the property owner or responsible party fails to submit an application to bundle any site, not already covered by an advance cleanup contract, under such voluntary cost-share agreement within three subsequent open application periods or 18 months, whichever period is shorter, during which it is eligible to participate. The property owner or responsible party must agree to conduct limited site assessments on the identified sites within 12 months after the execution of the voluntary cost-share agreement. For the purposes of this section, the term “facility” includes, but is not limited to, multiple site facilities such as airports, port facilities, and terminal facilities even though such enterprises may be treated as separate facilities for other purposes under this chapter.
(5) All funds collected by the department pursuant to this section shall be deposited into the Inland Protection Trust Fund to be used as provided in this section.