Site rehabilitation agreements.

(1) In addition to the legislative findings provided in s. 376.3071, the Legislature finds and declares:

(a) The provisions of s. 376.3071(5)(a) have delayed cleanup of low-priority sites determined to be eligible for state funding under that section and ss. 376.305 and 376.3072.

(b) While compliance with the department’s rules pertaining to storage tank systems is expected to significantly diminish the occurrence and extent of discharges of petroleum products from petroleum storage systems, discharges from these systems and discharges at sites with existing contamination which have been determined to be eligible for state-funded cleanup may still occur. In some cases, it may be difficult to distinguish between discharges that have been determined to be eligible for state funding and those discharges reported after December 31, 1998, which are not eligible for state funding.

(c) Restoration coverage under s. 376.3072(2)(d) is no longer provided for discharges of petroleum products from petroleum storage systems that are reported to the department after December 31, 1998. This situation may result in discharges that are not eligible for state-funded cleanup occurring on sites with existing contamination determined to be eligible for state-funded cleanup.

(d) It is necessary for the discharger, and may be desirable for the department, to address the cleanup of discharges of petroleum products reported to the department after December 31, 1998, including discharges that occur at sites with existing contamination determined to be eligible under ss. 376.305, 376.3071, and 376.3072.

(e) It is appropriate for persons assuming responsibility for cleanup of such discharges occurring after December 31, 1998, at sites with existing contamination determined to be eligible for state-funded cleanup, to share the costs associated with managing and conducting cleanup of those discharges upon application to the department and in accordance with a priority established for such cleanup in a negotiated site rehabilitation agreement.

(2) For the purposes of this section only, the term:

(a) “Applicant” means a facility owner, operator, discharger, or entity who accepts responsibility for cleanup of a new discharge on a qualified site and who applies for and enters into a site rehabilitation agreement with the department. Application for or execution of the site rehabilitation agreement shall not constitute an admission of liability for the new discharge by the applicant.

(b) “Existing contamination” means contamination that has been determined by the department to be eligible for state-funded cleanup under s. 376.305, s. 376.3071, or s. 376.3072 prior to the new discharge.

(c) “New discharge” means a discharge of petroleum products reported after December 31, 1998, occurring at a site with existing contamination.

(d) “Qualified site” means a site with a new discharge and for which the applicant has entered into a site rehabilitation agreement with the department.

(3) Free product attributable to a new discharge shall be removed to the extent practicable and pursuant to department rules adopted pursuant to s. 376.3071(5) at the expense of the owner, operator, or other responsible party. Free product attributable to existing contamination shall be removed pursuant to s. 376.3071(5) and (6) and department rules adopted pursuant thereto.

(4) Beginning January 1, 1999, the department may negotiate and enter into site rehabilitation agreements with applicants at sites with eligible existing contamination at which a new discharge occurs. The site rehabilitation agreement must include, but is not limited to, allocation of the funding responsibilities of the department and the applicant for cleanup of the qualified site, establishment of a mechanism to guarantee the applicant’s commitment to pay its agreed amount of site rehabilitation as set forth in the agreement, and establishment of the priority in which cleanup of the qualified site will occur. Under such a negotiated site rehabilitation agreement, the applicant may not be responsible for more than the cleanup costs that are attributable to the new discharge. However, the payment of applicable deductibles, copayments, or other program eligibility requirements under ss. 376.305, 376.3071, and 376.3072 shall continue to apply to the existing contamination and must be accounted for in the negotiated site rehabilitation agreement. The department may, pursuant to this section, conduct additional assessment activities at the site.

(5)(a) Applications for such site rehabilitation agreements may be submitted to the department not later than 120 days after discovery of the new discharge, on forms and instructions provided by the department, and shall include, but not be limited to:

1. A limited contamination assessment report, which shall be sufficient to demonstrate the extent of the new discharge and which may include any other evidence relevant to establish the extent or volume of the new discharge, or the impact of the new discharge relative to the existing contamination, in order to allocate the appropriate funding responsibilities of the applicant and the department. The limited contamination assessment report shall be used as a basis for establishing the respective site rehabilitation funding responsibilities of the applicant and the department for the new discharge and the existing contamination and for establishing the priority in which cleanup of the new discharge and the existing contamination will occur, based on the provisions of s. 376.3071(5)(a) and taking into consideration the cost-effectiveness associated with the timing of site rehabilitation activities.

2. Certification by the applicant that the applicant has the prerequisite authority to enter into the site rehabilitation agreement.

(b) Any costs incurred by the applicant to comply with this subsection are not refundable from the Inland Protection Trust Fund.

(c) Only one application may be submitted for any new discharge under this section.

(d) The application forms and instructions, and the terms and conditions of the site rehabilitation agreement, except as set forth in subsection (6), shall not be subject to the provisions of chapter 120.

(6) In the event the department and the applicant are unable to agree on the apportionment of the funding responsibilities and on the establishment of priority of cleanup for a site otherwise qualified under this section, the provisions of ss. 120.569 and 120.57 shall apply. The administrative law judge shall, in making any determinations or recommendations about the apportionment of the funding responsibilities of the department and the applicant for the new discharge and the existing contamination, consider any admissible evidence relating to apportionment of the discharges.

(7) The following shall be excluded from participation under this section:

(a) New discharges from storage systems owned or operated by the Federal Government when the new discharge occurred.

(b) New discharges at facilities which failed to correct a violation cited at a previous compliance inspection and at which the failure to correct the violation contributed to or caused the new discharge.

(c) New discharges intentionally caused by the owner, operator, responsible party, or applicant.

(d) Sites at which the department has been denied site access.

(e) New discharges at 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.

(f) New discharges at sites where the person or entity required to report the new discharge upon its discovery as required by department rule, or where the person or entity required to initiate free product recovery upon discovery as required by department rule, adopted pursuant to ss. 376.303 and 376.3071(5), failed to do so.

(8) If the department, at its discretion, determines that it is not able to complete negotiation of the agreement within 90 days after commencing negotiations, except as set forth in subsection (6), the department shall terminate negotiations with the applicant and the site shall receive no further consideration under this section. However, if the parties are negotiating in good faith and require additional time in which to continue negotiations, then the parties may mutually agree to continue negotiations.

(9) Site rehabilitation conducted at qualified sites shall be conducted pursuant to s. 376.3071(5)(b) and (6). If the terms of the agreement are not fulfilled by the applicant, the applicant forfeits the right to continued funding for site rehabilitation work under the agreement and is subject to enforcement action by the department or local government to compel cleanup of the new discharge.

(10) New discharges otherwise meeting the criteria of this section, or any site rehabilitation agreement made under this section, shall not constitute an independent entitlement to continued restoration funding or to cleanup of the existing contamination in advance of its previous priority order.

(11) Upon execution of the site rehabilitation agreement, retroactive to the date of discovery of the new discharge, the provisions of s. 376.308(5) shall extend to contamination covered by a site rehabilitation agreement as long as the applicant remains in compliance with the terms and conditions of the agreement. However, if state funding of any agreement entered into under this section is discontinued, the provisions of this subsection shall no longer apply to the new discharge. For purposes of chapter 95, a cause of action to compel cleanup of the new discharge or to compel payment of costs of the new discharge shall not accrue during the time that the site rehabilitation agreement is in effect.

(12) Nothing in this section shall be construed to preclude the department from pursuing penalties in accordance with ss. 376.303(1)(j) and 376.311 for violations of any law or any rule, order, permit, registration, or certification adopted or issued by the department pursuant to its lawful authority.

(13) The provisions of this section shall be retroactive to January 1, 1999, except as provided by subsection (11).