Phosphogypsum management; rulemaking authority.

(1) The Department of Environmental Protection shall adopt rules to amend existing chapter 62-672, Florida Administrative Code, to ensure that impoundment structures and water conveyance piping systems used in phosphogypsum management are designed and maintained to meet critical safety standards. The rules must require that any impoundment structure used in a phosphogypsum stack system, together with all pumps, piping, ditches, drainage conveyances, water control structures, collection pools, cooling ponds, surge ponds, and any other collection or conveyance system associated with phosphogypsum transport, cooling water, or the return of process wastewater, is constructed using sound engineering practices and is operated to avoid spills or discharges of materials which adversely affect surface or ground waters. The rules must require that a phosphogypsum stack system owner maintain a log detailing the owner’s operating inspection schedule, results, and any corrective action taken based on the inspection results. The rules must require phosphogypsum stack owners to maintain an emergency contingency plan and demonstrate the ability to mobilize equipment and manpower to respond to emergency situations at phosphogypsum stack systems. The rules must establish a reasonable time period not to exceed 12 months for facilities to meet the provisions of the rules adopted pursuant to this section.

(2)(a) By October 1, 2004, the department shall initiate rulemaking to require that phosphogypsum stack system operation plans required by department rule be amended by adding an interim stack system management (ISSM) plan that provides written instructions for the operation of the system, assuming that no phosphoric acid would be produced at the facility for a 2-year period. The initial ISSM plan must be completed as of the first July 1 following the adoption of the rule required by this section. The ISSM plan must include:

1. A detailed description of process water management procedures that will be implemented to ensure that the stack system operates in accordance with all applicable department permit conditions and rules. The procedures must address the actual process water levels present at the facility 30 days prior to the completion of the plan and must assume that the facility will receive annual average rainfall during the 2-year planning period.

2. A detailed description of the procedures to be followed for the daily operation and routine maintenance of the stack system, including required environmental sampling and analyses, as well as for any maintenance or repairs recommended following annual inspections of the system.

3. Identification of all machinery, equipment, and materials necessary to implement the plan.

4. Identification of the sources of power or fuel necessary to implement the plan.

5. Identification of the personnel necessary to implement the plan.

(b) The ISSM plan shall be updated annually, taking into account process water levels as of June 1 of each year and the existing stack system configuration.

(c) The requirements listed in paragraphs (a) and (b) are applicable to all phosphogypsum stack systems except those that have been closed, that are undergoing closure, or for which an application for a closure permit has been submitted pursuant to department rule.

(3)(a) By October 1, 2004, the department shall initiate rulemaking to require that general plans and schedules for the closure of phosphogypsum stack systems include:

1. A description of the physical configuration of the phosphogypsum stack system anticipated at the time of closure at the end of useful life of the system.

2. A site-specific water management plan describing the procedures to be employed at the end of the useful life of the system to manage the anticipated volume of process water in an environmentally sound manner.

3. An estimate of the cost of management of the anticipated volume of process water in accordance with the site-specific water management plan.

4. A description of all construction work necessary to properly close the system in accordance with department rules.

5. An estimate of all costs associated with long-term care of the closed system, including maintenance and monitoring, in accordance with department rules.

(b) The department shall revise chapter 62-673, Florida Administrative Code, to require the owner or operator of a phosphogypsum stack management system to demonstrate financial responsibility for the costs of terminal closure of the phosphogypsum stack system in a manner that protects the public health and safety, and must include criteria to evaluate the adequacy of the demonstration of financial responsibility.

1. The costs of terminal closure shall be estimated based on the stack system configuration as of the end of its useful life as determined by the owner or operator. These costs shall be verified by an independent third party.

2. The owner or operator may demonstrate financial responsibility by use of one or more of the following methods:

a. Bond.

b. Letter of credit.

c. Cash deposit arrangement.

d. Closure insurance.

e. Financial tests.

f. Corporate guarantee.

For the purposes of this section, the term “cash deposit arrangement” means a trust fund, business or statutory trust, escrow account, or similar cash deposit entity whereby a fiduciary holds and invests funds deposited by the owner or operator, which funds shall be expended only for the purpose of directly implementing all or some portion of phosphogypsum stack system closure requirements of that particular owner or operator.

3. A trustee, escrow agent, or other fiduciary of a cash deposit arrangement authorized by this section has no liability for any damage or loss of any kind arising out of or caused by performance of duties imposed by the terms of the applicable agreement unless such damage or loss is directly caused by the gross negligence or criminal act of the trustee, escrow agent, or other fiduciary. In performing its duties pursuant to the applicable agreement, a trustee, escrow agent, or other fiduciary is entitled to rely upon information and direction received from the grantor or the department without independent verification unless such information and direction are manifestly in error.

4. To the extent that a cash deposit arrangement is used to provide proof of financial responsibility for all or a portion of closure costs, the trust, escrow, or cash arrangement deposit entity is considered to have assumed all liability for such closure costs up to the amount of the cash deposit, less any fees or costs of the trustee, escrow agent, or other fiduciary.

5. Any funds maintained in a cash deposit arrangement authorized by this section are not subject to claims of creditors of the owner or operator and are otherwise exempt from setoff, execution, levy, garnishment, and similar writs and proceedings.

6. Any funds remaining in a trust, escrow account, or other cash deposit arrangement after the purpose of such cash deposit arrangement under this section has been accomplished shall be returned to the grantor.

(4) The department shall revise chapter 62-673, Florida Administrative Code, to require the owner or operator of a phosphogypsum stack system to demonstrate financial responsibility for the costs of terminal closure of the phosphogypsum stack system in a manner that protects the environment and the public health and safety. At a minimum, such rules must include or address the following requirements:

(a) That the cost of closure and long-term care be re-estimated by a professional engineer and adjusted for inflation on an annual basis. At a minimum, such cost data must include:

1. The cost of treatment and appropriate disposal of all process wastewater, both ponded and pore, in the system.

2. All construction work necessary to properly close the system in accordance with department rules.

3. All costs associated with long-term care of the closed system, including maintenance and monitoring, in accordance with department rules.

(b) That financial statements and financial data be prepared according to generally accepted accounting principles within the United States and submitted quarterly.

(c) That audited financial statements be provided annually along with the statement of financial assurance.

(d) That any owner or operator in default on any of its obligations report such default immediately.