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Division of Waste Management

Division of Waste Management. RULE WORKSHOP Petroleum Cleanup Program Orlando, Florida. June 19, 2013. Basic Information. Approximately $200 million added each year to the IPTF, most of which (~$125 million) is available for site rehabilitation. Approximately 17,300 funding-eligible sites

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Division of Waste Management

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  1. Division of Waste Management RULE WORKSHOP Petroleum Cleanup Program Orlando, Florida June 19, 2013

  2. Basic Information • Approximately $200 million added each year to the IPTF, most of which (~$125 million) is available for site rehabilitation. • Approximately 17,300 funding-eligible sites • Approximately 6,900 sites have been completed • Approximately 3,700 sites under some phase of site rehabilitation • Approximately 6,700 sites are waiting Most of these sites are more than 20 years old.

  3. Recent History • In March, the Secretary declared the tanks program is "broken" and needed to be re-engineered, due to inordinate delays, mounting cleanup costs, and failing to meet our primary goal of closure. • In May, the Legislature limited spending to no more than $50 million for 2013/2014 remediation work: • A portion may be approved before June 30th based on existing pre-approval procedures. • The remainder may be approved after June 30th, but only if competitively procured. • The balance of the fund ($75 million) could be made available at the discretion of the Legislative Budget Committee once the Department finalizes plans to improve the program effectiveness and efficiency and implements new rules for competitive procurement of remediation services.

  4. Recommendations • We’ve received numerous written recommendations • We’ve met with the Florida Petroleum Council, Florida Ground Water Association, and the Florida Petroleum Marketers Association • We’ve met with the State contractors • We’ve met with a variety of individual contractors and site owners • We’ve reviewed our competitive procurement procedures • We’ve reviewed our rules on how we score and select sites to determine an appropriate response action • We’ve hired a new Bureau Chief and are looking at improving internal organizational efficiencies

  5. Today’s Workshop We will make high-level presentations on the 2 draft rules: • Chapter 62-771, F.A.C. - Site Priorities for Petroleum Cleanup Clarify that cost-effective closure is the goal. Sites with minimal risk will be rescored. • Chapter 62-772, F.A.C. - Procurement Procedures for Petroleum Cleanup Identifies procedures to address the competitive procurement of contactors for state-funded cleanup.

  6. Today’s Workshop • Please hold all questions until after all presentations are made. These are intended to clarify the draft rules and your question may be answered in the next presentation. • The comment period will be open through July 3rd. • Although we have comment sheets available, for clarity, we highly recommend that you submit your comments in writing to Cheryl Stafford at: Cheryl.A.Stafford@dep.state.fl.us Florida Department of Environmental Protection Division of Waste Management Bureau of Petroleum Storage Systems Bob Martinez Center 2600 Blair Stone Road, MS #4575 Tallahassee, FL 32399-2400

  7. Division of Waste Management DRAFT CHAPTER 62-771, F.A.C. PETROLEUM CONTAMINATION SITE PRIORITIES 62-771.100 Applicability and Purpose. 62-771.200 Definitions. 62-771.300 Scoring System and Application. 62-771.400 Site Rehabilitation Closure. June 19, 2013

  8. Rule 62-771.100, F.A.C. Applicability and Purpose • Rescore whenever site-specific data shows more/less potential threat • Rank sites based on score to prioritize the order for response actions • Evaluate feasibility and cost-effectiveness of response actions • Integrate risk-based corrective action principles and site-specific conditions with assessment and remediation tasks • Goal is to close sites with Site Rehabilitation Completion Orders (SRCO) based on No Further Action (NFA) determinations

  9. Rule 62-771.200, F.A.C. Definitions • Moved definitions to its own rule • Added some common definitions from statutes • New: “Closure” or “site closure” means completion of site rehabilitation activities and issuance of a Site Rehabilitation Completion Order, which includes No Further Action determination using the risk-based corrective action procedures specified in Chapter 62-780, F.A.C. The Department shall select the most cost-effective means of site closure that is protective of human health and safety and the environment.

  10. Rule 62-771.300, F.A.C. Scoring System and Application • Currently points are awarded based on: • Fire/Explosion Hazard (free product) • Potential threat to potable water (nearness to wells, within well drawdown contour, down gradient of site) • Migration potential (released product characteristics and type) • Environmental setting (area and aquifer designations)

  11. Rule 62-771.300, F.A.C. Scoring System and Application, Cont’d • “Rescore” when site-specific data shows original basis for score does not accurately reflect potential threat posed to public health and the environment • When site-specific data shows minimal threat to potable water or surface water where the plume is: • Small (< ¼ acre) and confined within site property boundaries • Stable or shrinking, and • Not adversely affecting surface waters Deduct points from current score that were originally awarded in paragraph 62-771.300(1)(b) for threats to drinking water

  12. Rule 62-771.300, F.A.C. Scoring System and Application, Cont’d • Example 1: A new large potable well is added within ½ mile of the site. No other site-specific data available. Add 30 points to score. • Example 2. Site has current score of “58” with points awarded in paragraph 62-771.300(1)(b) due to: • Large well within ½ mile ………………………….…. 30 points • Well is down gradient from site ……………….……. 15 points A remediation activity is completed and site-specific data shows contamination plume is small, shrinking, contained on site, and not affecting surface waters. If possible, issue SRCO; otherwise, deduct 45 points and rescore site to 13. Reprioritize.

  13. Rule 62-771.400, F.A.C. Site Rehabilitation and Closure Site Evaluation. Use existing site-specific data to: • Identify risk • Determine closure options • Determine necessity for obtaining contracting services for assessment and/or rehabilitation activities • Rescore and reprioritize

  14. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, Cont’d Site Selection and Program Task Assignments. • Use priority ranking list • Assign contractors for program tasks based on: • New Chapter 62-772 requirements (includes options for eligibility programs) and • Contractor logistics, geographical considerations, workload, and other criteria the Department determines are necessary to achieve cost-effective site rehabilitation • To achieve cost-effective site cleanup and closure, the Department may combine lower scored sites with higher scored sites in assignments to contractors

  15. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, Cont’d Source Removal. If determined cost-effective and appropriate by the Department, proceed with source removal (e.g., free product removal, excavation, remediation systems, etc.) • After source removal, Department will re-evaluate to determine: • Qualifies for SRCO including NFA with or without controls? • Needs additional monitoring or is a suitable candidate for natural attenuation monitoring? • Additional response actions are cost-effective and appropriate? • Rescore?

  16. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, Cont’d Site Remediation Closure Orders (SRCOs). • Department will use Risk Management Options in Rule 62-780.680, F.A.C. to make a NFA determination with or without controls and issue an SRCO • NFA determinations will consider degree to which desired cleanup target level is achievable and can be reasonably and cost-effectively implemented with available technologies or engineering and institutional control strategies • If the Department determines that additional response actions are necessary for an NFA, such actions shall be conducted in the order established by the priority ranking list

  17. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, (4) Cont’d Factors. When making an NFA determination, Department will consider: • Effectiveness of source already completed • Practical likelihood of: • Use of low yield or poor quality groundwater • Use of groundwater near marine surface water bodies • Current/projected use of affected groundwater near the site, or • Use of groundwater in near storage tank area, where it has been demonstrated that the groundwater contamination is not migrating away from such localized source • Existing restrictions on access to groundwater • Available public drinking water supply

  18. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, Cont’d Minimal Risk Criteria. Following criteria shows that contamination has negligible migration potential, limited exposure pathways, and poses little risk to human health and the environment. • Small, < ¼ acre • Stable or shrinking (6 months of groundwater data) • Confined within site property boundaries, and • Not adversely affecting surface waters • Soils onsite that are subject to human exposure found between land surface and 2 feet below land surface meet the soil cleanup target levels established by Department rule or human exposure is limited by appropriate institutional or engineering controls; and • No useable potable wells within the plume

  19. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, (5) Cont’d Options when site-specific data meets minimal risk criteria: • SRCO based on NFA determination with or without controls • In accordance with Chapter 62-780, F.A.C. conduct risk assessment to evaluate alternative cleanup target levels and issuance of SRCO • Determine potential for natural attenuation of site to achieve closure and appropriate monitoring strategy.

  20. Rule 62-771.400, F.A.C. Site Evaluation, Rehabilitation and Closure, (5) Cont’d Natural Attenuation. Use natural attenuation monitoring strategies in Rule 62-780.690, F.A.C. and, when cost-effective, transition sites to long-term natural attenuation monitoring where the plume is: • Shrinking or stable and confined to the source property boundaries • Contaminants meet the natural attenuation default concentrations Nothing in this paragraph precludes the Department from issuing an SCRO based on a NFA determination with or without controls.

  21. Division of Waste Management DRAFT CHAPTER 62-772, F.A.C. PROCUREMENT PROCEDURES FOR PETROLEUM CLEANUP June 19, 2013

  22. Agenda • Implementing Bill Language • Implementing Language Procurement Options • Actions Taken • Applicability and Purpose • Rule Highlights

  23. Implementing Bill Language • Implementing Bill Directive (Chapter 2013-041, Section 29, Laws of Florida) All task assignments, work orders, and contracts for providers under the Petroleum Restoration Program entered by the department on or after July 1, 2013, pursuant to this section and ss. 376.3071 and 376.30713 must be procured through competitive bidding pursuant to s. 287.056, s. 287.057, or s. 287.0595.

  24. Implementing Bill Language Procurement Options • 287.056, F.S. – Provides authority to Department of Management Services (DMS) to establish State Term Contracts for commodities and contractual services. • 287.057, F.S. – Provides authority to Department of Environmental Protection (DEP) to issue competitive procurement solicitations (Invitation to Bid (ITB), Request for Proposals (RFP), and Invitation to Negotiate (ITN)) for the acquisition of commodities and contractual services. • 287.0595, F.S. – Provides authority to DEP to develop rules for the procurement of response action contractors.

  25. Actions Taken • Drafted Rule • Developed a plan for submission to the Legislative Budget Commission • Considering use of the ITN process to establish agency term contracts. • Considering the use of the ITB, RFP or ITN procurement options for site specific contracts.

  26. DRAFT CHAPTER 62-772, F.A.C.PROCUREMENT PROCEDURES • 62-772.100 Applicability and Purpose. • 62-772.200 Definitions. • 62-772.300 Contractor Qualifications and Performance Reviews. • 62-772.400 Procedures for the Competitive Procurement of Contractors • 62.772.401 Procedures for Other Procurement Methods. • 62.772.402 Exceptions to Competitive Procurement Requirements. • 62-772.500 Contractor Assignment. • 62-772.600 Contract Terms and Conditions.

  27. Section 62-772.100, F.A.C. Applicability and Purpose. • Petroleum cleanup using funds from the Inland Protection Trust Fund • Procedures for: • Qualifying vendors for bids, proposals, and replies • Competitive procurement for contracts and terms/conditions of contracts • Awarding contracts to responsible and responsive vendor competitively procured on a best value basis. • Assignment of qualified contractors • Payment of contracts by the state • Procedures to negotiate contracts and terms and conditions

  28. Section 62-772.200, F.A.C. Definitions. “Best Value” means the highest overall value to the state based on objective factors that include, but are not limited to, price, quality, design and workmanship. “Response action” means any activity, including evaluation, planning, design, engineering, construction, and ancillary services, which is carried out in response to any discharge, release, or threatened release of a hazardous substance, pollutant, or other contaminant from a facility or site identified by the department under the provisions of ss. 376.30 - 376.317. “Response action contractor” or “contractor” means a person who is carrying out any response action, including a person retained or hired by such person to provide services relating to a response action.

  29. Section 62-772.300, F.A.C. • Contractor Qualifications • Remain substantially unchanged • Qualified on date of opening solicitation response. • Disqualification • Owner/Operator or designee receipt of remuneration • Contractors shall not conduct petroleum site rehabilitation services for sites that they, either directly or indirectly, own, share ownership, or have any financial interest other than ownership of securities in publicly traded companies, or is a responsible party.

  30. Section 62-772.300, F.A.C. • Contractor Performance Review • The Department shall evaluate contractor performance at least after completion of each task assignment under a term contract or completion of other non-term contracts. • Annually, the Department shall complete a review of each contractor on the work performed under a term contract during the state fiscal year. • Contractors will be rated on: quality and accuracy of work, timeliness of work, financial and progress reports, communication, cost control, technical competence and expertise. • Contractor performance review shall be considered prior to authorizing any contract renewals and task assignments.

  31. Section 62-772.400, F.A.C. Competitive Procurement of Contractors • Section 287.057, F.S. based. • Establishes procedures for negotiating contracts under the ITN process. • Based on objective factors (price, quality, design and workmanship and others, as determined by DEP) • Allows for agency term contracts and non-term contracts to be established. • Allows DEP to award multiple agency term contracts for similar services. • Allows DEP to establish geographical regions for distinct contract areas. • Department may issue non-term contracts for similar services for a given period of time for specific projects or groups of projects – open competitive bidding. (ITB, RFP or ITN)

  32. Section 62-772.400, F.A.C. Competitive Procurement of Contractors (cont.) Department will assign work to term contract holders using one of the following options: • Direct task assignment to an agency term contractor without any further negotiation, based on established pricing identified in the term contract; or • Request for quotes from a specified number of contractors under agency term contracts.

  33. Section 62-772.401, F.A.C. Other Procurement Methods Low Scored Site Initiative (LSSI) An owner or responsible party will: • Select an agency term contractor; or • Select qualified contractor not under contract with state provided that pricing levels and conditions can be negotiated on best terms the Department; or • Agree to informal quote process (using a request for written or electronic quote) administered by Department

  34. Section 62-772.401, F.A.C. Other Procurement Methods (cont.) Preapproved Advanced Cleanup (PAC) and Site Rehabilitation Funding Allocation (SRFA) participants will: • Accept Department’s recommended agency term contractor; or • Select agency term contractor from limited list proposed by Department based on its assessment of overall risk, cost, ability to reach a form of prompt closure, location, technical capabilities, workload, and owner input, and other relevant factors; or • For PAC and SRFA agreements with owner’s cost share of 50% or more, select any agency term contractor or, with concurrence of Department have Department competitively procure a contractor pursuant to s. 287.057, F.S. • The PAC and SRFA agreement will identify option selected.

  35. Section 62-772.401, F.A.C. Other Procurement Methods (cont.) Petroleum Cleanup Participation Program (PCPP) participants will: • Accept Department’s recommended agency term contractor; or • For PCPP agreements with participant’s cost share at 25% maximum, select any agency term contractor.

  36. Section 62-772.402, F.A.C. Exceptions to Competitive Procurement Requirements • For emergencies, Department will follow procedures in s. 287.057(3)(a), F.S. to mitigate immediate danger to public health, safety, or welfare or other substantial loss to state. • For single source purchases, Department will follow procedures in s. 287.057(3)(c), F.S.

  37. Section 62-772.500, F.A.C. Contractor Assignment • Will remove this rule.

  38. Section 62-772.600, F.A.C. Contract Terms and Conditions • Department contracts under this Chapter will contain terms and conditions specified in s. 287.058, F.S. • Payments, purchases, warrants, and invoices are subject to the provisions in s. 215.42, F.S., 215.422, F.S., and 112.061, F.S. • If applicable, Department will follow provisions in s. 287.05805, F.S. for contracts for use of state funds to purchase or improve real property. • The Department will include contingency statements as appropriate in contracts which require annual appropriation in accordance with s. 287.0582, F.S. • The Department will include the provisions in s. 287.0585, F.S. for late payments by contractors to subcontractors and suppliers and penalties, as deemed appropriate. • If federal funds are used, contracts, task assignments, and/or purchase orders will include any necessary terms and conditions required by the federal agency.

  39. Division of Waste Management DRAFT CHAPTER 62-780, F.A.C. Contaminated Site Cleanup Criteria No changes proposed for this rulemaking phase. June 19, 2013

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