The following brief program summaries are intended to orient the Site Manager regarding program specific concerns. It is by no means intended to be a complete description of the programs, and the Site Manager is encouraged to pursue such details on their own. A facility may have more than one discharge and may be eligible for more than one program. To determine which program(s) are applicable for a facility, the Site Manager should check the Storage Tank Contamination Monitoring Application/Petroleum Cleanup Tracking Database (STCM) screen titled “Discharge.” See Table 1 - Program Eligibility Summary for a summary of program eligibilities.
EDI is the first of the eligibility programs. It was created by the 1986 Legislature as part of the “State Underground Petroleum Environmental Response Act” or SUPER Act. It was essentially an amnesty program in which the state agreed to pay for the cleanup of existing petroleum product contamination if the property owners/responsible parties would report it to DEP. This program was seen as relief from the endless litigation that had characterized identification of responsible parties for these sites and the fact that once identified, they seldom had enough money to cover the cost of the cleanup. The application period for the EDI program was originally scheduled to end 10/1/87, but was extended twice to finally end on 12/31/88. There are no caps, deductibles or cost-share requirements for EDI eligible sites. EDI eligibility, absent any other limitations contained in the eligibility order, extends only to the petroleum product contamination that existed on the property at the time of application to the EDI program and not to any subsequent discharges. See Subsection 376.3071 (10), Florida Statutes (F.S.), for more information on EDI.
PLRIP was intended to take over where EDI left off. It was assumed that all known discharges would be identified and then we would only have to insure against new discharges. Essentially, the state underwrote the restoration portion of the insurance coverage if the owner/operator had the required liability coverage. Coverage under PLRIP was phased out over multiple years, and as the state share of PLRIP coverage was reduced (which accounts for the decreasing cap), the owner/operator was required to carry restoration coverage up to a total of $1,000,000. The coverage, deductibles and rules for PLRIP have been changed frequently (including at least two ‘redetermination’ periods and an increase in coverage amounts), so consult the information in the site file, and probably the Eligibility Coordinator, to recreate some of these eligibilities. PLRIP has two forms of deductibles: the original deductible assessed purely on the date the discharge was reported (ranging from $500 to $10,000) and a supplemental deductible which was a form of penalty assessed when certain DEP requirements were not met (ranging from $5,000 to $25,000). PLRIP has funding caps currently ranging from $300,000 to $1,200,000. The cap and deductible for each discharge are listed on the STCM screen titled “Caps and Deductibles.” If the cap amount is not sufficient to cover the full cost of cleanup, then the participant must complete the cleanup either through their insurance carrier (up to the policy limit) or at their own expense. See Section 376.3072, F.S., for more information on PLRIP.
The amount of the original or primary PLRIP deductible is dependent on when the discharge was reported. The supplemental deductibles for discharges that were made eligible as a result of the redetermination provisions passed by the 1996 Legislature (see Subsection 376.3072[d]2.f., F.S.) were assessed for failure to timely report a release, timely test the storage tank system, or timely abate a known source of contamination. The total deductible (original plus supplemental) for some discharges can reach as high as $35,000. Check the STCM screen to determine the correct deductible. Some eligibility packets had multiple supplemental deductibles ‘stacked’ (added together) for the same discharge. The Legislature later clarified that the PLRIP supplemental deductibles are not to be ‘stacked,’ but the highest supplemental deductible for the discharge is the only one that applies. The deductible listed in STCM should reflect the sum of the original deductible plus the highest supplemental deductible (if any); if you have any questions, contact the Eligibility Coordinator. If a facility has multiple PLRIP eligible discharges, then the deductible(s) for each discharge must be collected (not just the highest one). The deductible(s), or the first installments of approved deductible payment plans, must be collected before doing any work under the PRP. Other than for Low-Scored Site Initiative (LSSI) assessments, there is no statutory provision to waive or reduce PLRIP deductibles or for the site owner/responsible party to demonstrate financial inability to pay. Please visit the SOP - 3. Deductible and CAPs page for more information regarding deductibles.
ATRP was created to address contamination at facilities that were “out of the business of storing petroleum.” To be eligible for ATRP, a facility cannot have stored petroleum products for consumption, use or sale since 3/1/90. The original application deadline was 3/31/91, but it was extended twice to 6/30/96. On July 1, 2016, the application date to apply to ATRP was removed. ATRP is subject to a $500 deductible. See Subsection 376.305(6), F.S., for more information on ATRP.
The 1996 legislation kept the ATRP application window open indefinitely for owners/responsible parties who are financially unable to pay for the closure of their petroleum storage tanks. To become eligible under this provision, the property owner/responsible party must provide information regarding their financial status. The property owner/responsible party must complete an “Ability to Pay” package and submit it to DEP for review. If the property owner/responsible party is determined to be unable to pay for the closure of the tanks, then the discharge can be made eligible under indigent ATRP, and the tank removal and closure, as well as any subsequent site rehabilitation activities, will be performed by the state. All other eligibility requirements and benefits are the same as in ATRP.
Innocent Victim Petroleum Storage System Restoration Program (IVPSSRP)
In 2005, the Legislature created Section 376.30715, F.S., titled “Innocent Victim Petroleum Storage System Restoration” as a subset of the ATRP program along with subsequent amendments. Under this provision, if a site was acquired prior to July 1, 1990, and had ceased operating as a petroleum storage or retail business prior to January 1, 1985, then it could be eligible for financial assistance pursuant to Subsection 376.305(6), F.S. (ATRP), notwithstanding the conflicting deadlines set forth in Subsection 376.305(6)(1), F.S.
The ATRP deductible is set by rule at $500 for all ATRP discharges, and there is no cap under ATRP. The ATRP $500 deductible may be waived if the party responsible for payment can show financial hardship or other hardship pursuant to Section 120.542, F.S. Parties interested in receiving such a waiver must file a request for waiver of this deductible with the DEP Office of General Counsel (OGC) along with information regarding their financial status. The ATRP deductible is waived under the LSSI.
PCPP is a cost-sharing clean-up program created by the 1996 Legislature and enacted on 7/1/96 to try to include all the sites that had missed all previous opportunities to apply for a state-funded cleanup program. To be eligible for PCPP, the discharge must have occurred prior to 1/1/95 and reported to DEP on or before 12/31/98. On July 1, 2016, the 12/31/98 reporting date to apply to PCPP was removed. For discharges discovered after 1/1/95, the property owner/responsible party was required to demonstrate that the discharge occurred prior to 1/1/95. This requirement is straightforward for facilities that have not been in operation since 1/1/95, but it may be more difficult for a facility currently operating to prove the date of the discharge.
DEP will notify the property owner/responsible party when state funding becomes available based on the site priority core. To participate in the PCPP, a Limited Contamination Assessment Report (LCAR) must be prepared at the owner's expense and the owner must agree to share 25 percent of the costs. The PCPP LCAR and 25 percent co-pay requirements are waived under the LSSI and Low-Scored Assessment (LSA) programs. See Subsection 376.3071(13), F.S., for more information on PCPP.
Indigent PCPP Requirements
As a condition of PCPP eligibility, the property owner/responsible party must prepare and submit an LCAR (see LCAR Preparation Guidance) and agree to pay 25 percent of the total cost of cleanup. However, either or both of these requirements may be reduced or eliminated if the owner/responsible party can demonstrate that they are financially unable to pay for them. Information and examples of the forms for demonstrating ability to pay (ATP) are included in Ability to Pay Analysis. These forms are reviewed by the DEP Office of Inspector General (OIG). Please contact the ATP Analysis Coordinator for more information on ability to pay analyses. After the funding cap has been reached, if an inability to pay determination is made, further cleanup and costs shall be addressed in a district consent order.
PCPP Funding Cap
The total state funding available under PCPP is $400,000 per discharge. Pursuant to legislative changes to Subsection 376.3071 (13), F.S., this funding cap was increased from $300,000 to $400,000 effective July 1, 2008. In 2016, a provision was made by the Legislature that an additional $100,000 could be added to the CAP if it could bring the site to full or conditional closure. This brought the total PCPP funding per discharge to $500,000. If the participant pays the required 25 percent, then the total amount spent on cleanup will be $666,666.67 (the state’s $500,000 plus the participant’s $166,666.67). If the participant pays less than 25 percent, then the total spent on cleanup will be correspondingly reduced, but the maximum state share will remain at $500,000. For example, if the cost share is determined to be 10 percent, then the total amount for cleanup is $555,555.55 (the state’s $500,000 plus the participant’s $55,555.55). If the total is not sufficient to cover the full cost of cleanup, then the participant must complete the cleanup at their own expense (see SOP - 3. Deductibles and CAPs). Alternatively, if the PCPP participant is unwilling or unable to complete the cleanup, such cases are handled as an enforcement case and a district consent order must be entered into (see Consent Order [CO] below).
The PCPP Agreement
The PCPP Agreement must be executed by DEP and the responsible party(ies) before beginning work on a PCPP site. This agreement contains each responsible party’s cost share and an estimate of the total cost to clean up the site. In some cases, particularly when contamination migrates off-site, it may be necessary to complete the assessment after the cost-share agreement is in place and that the cost-share agreement would apply to those assessment costs. The PCPP Agreement must be completed before any task assignment or purchase order is issued. Copies of the PCPP Information Sheet, the PCPP Affidavit and an example of the standard PCCP Agreement are included on the Petroleum Cleanup Participation Program webpage. These PCPP Agreements must be signed first by the responsible party(ies) then by the PRP Administrator before they are effective. All PCPP agreements must be reviewed by the PCPP Coordinator.
Once contract negotiations have begun, the responsible party has 120 days to execute the agreement. If they fail to do so, then they lose their restoration funding (PCPP eligibility) and the exemption from having to pursue cleanup immediately granted to sites that are in a funding program. Enforcement to compel cleanup is then turned over to the appropriate DEP district office.
The PCPP cost-share agreement between the responsible party and the state establishes a ceiling (which may be equal to or lower than the eligibility funding cap) on both parties’ financial contribution. As a Site Manager of a PCPP site, the Site Manager must keep track of the cleanup costs and make sure that the ceiling amount specified in the cost-share agreement is not exceeded. If it is getting close to reaching the ceiling amount, or if a proposal is received that will exceed the ceiling, the Site Manager will need to get in touch with the PCPP Coordinator so that the agreement can be amended to increase the ceiling amount (up to a maximum state share of $500,000). If the PCPP agreement ceiling amount is reached, then the Site Manager cannot proceed with the cleanup until the responsible party(ies) and DEP have signed an amendment. Once the state’s share of $500,000 is reached, the PCPP agreement cannot be extended. Finally, the PCPP agreements that provide for elimination or reduction of the responsible party’s obligation based on inability to pay for the LCAR and/or the cost share generally cannot be assigned to a new owner with the same benefit. A new PCPP Agreement is required and if they assert an inability to pay, a separate analysis would be required of the new owner.
Early PCPP agreements were generally in effect for 48 months, after which time they had to be renewed if the cleanup was to continue under that program. Some of the early PCPP agreements have expired and would require a new PCPP agreement (not an amendment) to reactivate. Currently, agreements are in effect until the cleanup is completed or the funding cap is reached.
The Co-Pay Percentage
The percentage of the cleanup that DEP is paying must be entered on the Schedule of Pay Items (SPI) workbook in the section marked “DEP Cost Share” when generating the SPI for a PCPP site. The workbook will then calculate the participant’s cost share and adjust the totals accordingly.
AC (formerly PAC) was created by the 1996 Legislature to allow eligible discharges to get state funding assistance out of priority score order and is currently addressed in section 376.30713, F.S. Discharges that are previously eligible for one of the five programs (EDI, PLRIP, ATRP, PCPP and IVPSSRP) are allowed to participate in AC. Legislative changes in 2005 authorized discharges eligible for PCPP to participate in AC provided their PCPP 25 percent co-payment requirement has not been reduced or eliminated pursuant to Subsection 376.3071(13)(d), F.S. Legislative changes in 2014 and 2016 provided for bundles of sites (20 or more sites in 2014 and lowered to five or more sites in 2016) to participate using an applicant cost share, a demonstrated cost savings to the Department or a combination of the two to satisfy an aggregate minimum 25 percent cost reduction requirement if addressed in a performance based contract (PBC). An Owner/RP may enter into a voluntary cost-share agreement to commit to bundle multiple sites and list the facilities that will be included in those future bundles. These facilities are not subject to Agency Term Contract (ATC) assignment for a period of time not to exceed 18 months and are considered to be “on hold” until an AC Agreement can be finalized or the hold time expires. See Hold for AC Query Guidance for step to verify in STCM is a site is on hold). Individual sites can also participate in the AC Program outside of PBC under the same stipulations requiring at least a 25 percent cost reduction. Applications can also be submitted for sites scheduled for forthcoming redevelopment which have similar requirements less the 25 percent cost reduction. Discharges that are approved for funding under a consent order or other indigent site owner funding mechanism cannot participate in this program. AC cleanups will almost always be for the full cleanup or risk‑based cleanup of the site. New discharges at sites where an AC contract is in place are handled similarly to any eligible site at which a new, ineligible discharge occurs (see the below subsection "Site Rehabilitation Funding Allocation Agreements"). See Section 376.30713, F.S., for more information on AC.
In order to take advantage of this provision, the AC applicant must bid a cost share and/or a cost savings for the cleanup. This cost share must be at least 25 percent of the total cost of the proposed cleanup. In years when DEP runs an AC bid cycle, bids may be accepted during two windows: November 1st ‑ December 31st and May 1st ‑ June 30th. Applications are prioritized solely on the percentage of the cost share and not the estimated dollar amount of that share. Applicants must propose a closure endpoint to the discharge, except under very special circumstances. The applicant must also submit an LCAR (see LCAR Preparation Guidance) that is of sufficient detail to support their proposed course of action and their estimated cost of cleanup. In addition to the above requirements, the applicant must also pay a nonrefundable $250 review fee with the application, as well as, provide a signed site access agreement. When a decision is reached to open an AC application window, notice will be posted on the PRP website with instructions on how to access the electronic application forms.
Advanced Cleanup for Redevelopment (ACR)
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. Applications for AC at 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 or any cost-sharing commitment (except for what is required if funded by PCPP Program). Applications must be accepted on a first-come, first-served basis and are not subject to the ranking provisions of regular AC applications. Please see the Advanced Cleanup Program webpage for additional details.
AC Funding Cap
The Department may enter into contracts for a total of up to $30 million of AC work in each fiscal year. Up to $5 million of these funds may be designated by the department for ACR, however, each applicant or individual site scheduled for redevelopment may not approved for more than $1 million of cleanup activity in each fiscal year. A facility or applicant applying for AC does not limit the state funds spent on any one site except that each discharge is limited to funding limitations of the program that it is in. Any program specific funding cap will still apply and participation in AC cannot be used to raise a program cap (nor can the cost share be counted toward any required deductible). A facility of applicant who bundles multiple sites as noted above may not be approved for more than $5 million of cleanup activity each fiscal year.
The AC Contract
The AC Contract must be signed by DEP and the applicant before work begins on an AC site. This contract contains the agreement of the applicant to pay their cost share, a description of the cost reduction and an estimate of the total cost to clean up the site. This contract must be executed before any task assignment or purchase order is issued. A copy of this contract is included on the Advanced Cleanupwebpage. These contracts must be signed by DEP and the applicant before they are effective. Do not change any of the language in the contract without first consulting with the OGC and the AC Coordinator. In the event that the funding under the AC contract is exhausted, if the cleanup is not complete and funding remains available under the program cap (e.g., PLRIP), then the responsible party may renegotiate the AC contract, reapply to AC, or wait until cleanup is resumed in priority order.
The Co-Pay Percentage
The percentage of the cleanup that DEP is paying must be entered on the SPI in the section marked “DEP Cost Share” when generating the task assignment or purchase order for an AC site. The SPI will then calculate the owner’s/responsible party’s cost share and adjust the totals accordingly.
Consent Order (CO)
COs (sometimes referred to as “Hardship” or “Indigent”) are not a cleanup program, but are a special case of funding assistance. These are cases in which DEP (usually at the district level) has a signed agreement with a responsible party to coordinate the cleanup of the site. It is imperative that you carefully read the entire CO before you begin work on one of these sites. These agreements will contain specific details on who will pay how much toward the cost of cleanup and what the cleanup endpoint will be. You need to determine whether any payment commitment made by parties to the CO have been received by DEP. Please be aware that DEP is not always obligated to clean up such sites to Risk Management Option (RMO) Level 1 criteria as specified in Chapter 62-780, Florida Administrative Code (F.A.C.), and the responsible party is typically not permitted to select a Contractor. If a copy of the CO is not in the file, then one can be obtained from either the OGC Tanks Enforcement or from the appropriate DEP district office. If the name on the CO does not match the name of the current property owner, then it is very likely that Inland Protection Trust Fund (IPTF) funds should not be spent on that facility, but only the OGC can confirm this. If the Site Manager has any questions, please contact the Tanks Enforcement attorney in the OGC.
The 1999 Legislature created Section 376.30714, F.S., to authorize DEP to enter into SRFAs with responsible parties for sites with existing contamination eligible for State Cleanup funding at which a new non-eligible discharge occurred after December 31, 1998. This section requires an applicant to submit an application which includes an LCAR for the Agreement. Note that the LCAR for these agreements differs slightly from that required for PCPP and AC (see LCAR to Support a SRFA - Preparation Guidance). The SRFA application and LCAR must be submitted to DEP within 120 days of discovery of the new discharge. The effective date of the law was June 17, 1999, but it is retroactive to January 1, 1999, so that sites where a new discharge was discovered after December 31, 1998, but before June 17, 1999, had 120 days from June 17, 1999 (or until October 15, 1999) to submit their application and LCAR. Copies of the SRFA Information Sheet, SRFA Application, standard SRFA Agreement, and LCAR to Support a SRFA - Preparation Guidance are included on the Site Rehabilitation Funding Allocation webpage. A SRFA may affect the site’s default priority status including DEP-funded work in priority order or out of priority order.
Resolving Questions About Discharges and Eligibilities
Facilities with Multiple Eligibilities
Many petroleum-contaminated facilities contain more than one discharge and these may be eligible for funding from different funding assistance programs. It is incumbent upon the Site Manager to be familiar with all of the reported discharges at a facility and what, if any, program eligibility applies to each of those discharges. The basic eligibility information can be found on the STCM screen titled “Discharge Information.” The Site Manager must compare the file information, and assessment information as it is collected, to attempt to apportion the eligibilities to their respective discharges. At times, the contamination plumes may be co-mingled and there will not be sufficient information to accurately apportion the specific contribution of each discharge to the combined plume. In such cases, all individual discharges would be assumed to have equal contributions. However, should there be sufficient information to accurately apportion the costs, each discharge would be subject to its specific eligibility limitations and unused funding for one would not be available to cover another. The simplest examples can be seen with separate and distinct plumes or where one discharge is almost fully rehabilitated before the next occurs. Once the Site Manager generates a recommendation on apportionment, the Section Leader should review and approve that apportionment. This is especially important when the different discharges have different funding CAPs (e.g., PLRIP and PCPP) or a cost share is involved (e.g., AC, PCPP, SRFA and some Consent Orders).
Discharges recorded in STCM may have been combined with a previous discharge. This combined status does not apply program funding eligibility from one discharge to another or eliminate the financial responsibility that may exist for any particular discharge.
In some cases, the later reported discharge can be determined to be a re-report of the discharge with which it is combined. In those cases, the Eligibility Coordinator will delete the most recent discharge date if there is no eligibility order for that discharge and a request is made in writing accompanied by supporting documentation (See the "Rescission of a Discharge Report with No Program Eligibility" section below.) If the later discharge does have an eligibility order, a cleanup not required status will be entered in lieu of deleting (See the "Eligible Discharges That Are Determined Not to Be New Discharges" section below). In some cases, the discharges were combined for cleanup even though they may represent two separate events or they may have been combined in error. In every case, Site Managers will need to review the site file to determine, if possible, why the discharges were combined and take corrective action, if needed. If discharges at a facility reflect combined and it is determined this is in error, the site manager will draft a memo to their team leader recommending the combined status be removed and why with supporting documentation attached.
Facilities with Eligible and Ineligible Discharges
In cases were the eligible discharge may co-exist with an ineligible discharge, the Site Manager must help determine the relative contribution of each discharge to the contaminant plume so that the proportional share for the cost of the cleanup can be established. If a new discharge is discovered at an active funded cleanup site, a Discharge Reporting Form should be filed out by the property owner or responsible party in accordance with Chapter 62-761 or 62-762, F.A.C. This procedure will create an official record and preserve our ability to pursue enforcement action for cleanup if necessary. A Site Rehabilitation Funding Allocation Agreement may be executed to a cost allocation for the new discharge at a facility which is co-mingled with an eligible discharge. All SRFA agreements should be coordinated with the SRFA Coordinator.
DEP has initiated a procedure for special forensic technical analysis under a State-Lead Contractor in cases where existing documentation is insufficient to establish a reasonable basis for the allocation of contamination between multiple discharges. Justification and approval for forensic technical analysis shall be handled on a case-by-case basis. DEP and contracted local program staff should direct a written request for forensic technical analysis together with supporting justification through their supervisor and Section Leader to the following first point of contact within the PRP:
The PRP SRFA Coordinator for sites involved in SRFA negotiations;
The PRP Chief Geologist for sites involved in a request to rescind a previously issued No Further Action or Site Rehabilitation Completion Order; and
The PRP Chief Engineer for sites at which a new discharge is suspected but not confirmed.
If the first point of contact concurs with the justification, the request for forensic technical analysis will be referred to the State Forensics Contract Manager for assignment and implementation. Upon completion, a report will be provided to the original requestor who should discuss the results with the Section Geologist and the first point of contact reviewer.
When a new discharge is discovered or suspected that is not part of the original eligible discharge and the cleanup of the new discharge is not being satisfactorily addressed by the responsible party, then the case should be referred to the applicable DEP district office for enforcement of requirements of Chapter 62-780, F.A.C. Refer to the memo "Referring Cleanup Cases Involving Suspected New Discharges for Enforcement" for guidance on the minimum amount of information required by the districts to open an enforcement case.
Eligible Discharges That Are Determined Not to Be New Discharges
Occasionally, a discharge that has been made eligible for funding from the IPTF is later found to be a re-report of a previous eligible discharge. In these cases, the property owner or responsible party may want to rescind the discharge report and associated eligibility. DEP will not rescind an eligibility order once it has become final. If a file review verifies that the discharge is simply a re-report of the eligible discharge, a Site Rehabilitation Completion Order (SRCO) will be issued. For more information see the May 30, 2001, memo "No Further Action (NFA) Orders for Discharges with IPTF Eligibility That Are Determined Not to Be an Actual New Discharge."
Rescission of a Discharge Report with No Program Eligibility
Some discharge reports in STCM represent re-reports of existing contamination or a data entry error. Upon discovery that a discharge listed in STCM meets one of these criteria and, therefore, should be removed from the database, the Site Manager must send a memo to the Eligibility Coordinator with the details of why the discharge should be removed from STCM. See the "Rescission of a Discharge Report for Discharges With No Program Eligibility Indicated" memo dated May 30, 2001, for more information and details on routing the memo.
Discharges with Cleanup Not Required Status
Cleanup Not Required (NREQ) status in STCM means that for one or more of the reasons listed below, further actions to perform a comprehensive contamination assessment or cleanup associated with a particular discharge are not required to be implemented in accordance with Chapter 62-780, F.A.C., based on the information available at that time.
No documentation of actual contamination in the environment exists;
Contamination initially reported as a new discharge and was issued an eligibility order, has been deemed to be a re-report of contamination from a prior discharge that has not yet been cleaned up (Site mangers must review the specific NREQ memo for the discharge, to determine whether an SRCO will be issued to the NREQ discharge when the other discharge receives an SRCO);
Though prior documentation of contamination exists, no evidence of contamination was discovered during closure of the petroleum storage system;
Though prior documentation of contamination exists, limited remedial action and confirmation sampling have resulted in no remaining evidence of contamination. Typically performed during closure of the petroleum storage system; and
The department issued a letter to the responsible party indicating no further action/assessment is required for the reported incident or discharge.
Failure to Meet or Adhere to Eligibility Requirements
State funding assistance for cleanup is not always completely free for the property owner or responsible party. Several of the eligibility programs have additional requirements that must be honored. These requirements can include deductible payments and LCAR preparation. See SOP - 3. Deductible and CAPs webpage for procedures for requesting deductibles and what to do if there is no response from the property owner or responsible party. Access to the site to perform the cleanup is a statutory requirement for all of the funding assistance programs. Note that the mandatory site access requirement applies only to the facility at which the discharge was reported and made eligible. Access to off‑site properties must be obtained independently, and the OGC can provide assistance in obtaining off-site access. Owners/responsible parties who fail to adhere to the program requirements, for example, by declining to pay the deductible, declining to prepare the LCAR, or by denying access to the property, risk losing or delaying state funding. The consequences of failing to adhere to the eligibility requirements may subject the property owner/responsible party to enforcement by DEP, a local government or a third party to compel cleanup of the site. This enforcement can include requiring the property owner/responsible party to perform the cleanup at their own expense and court action to compel site access. In some cases, the state may go forward with the cleanup and then pursue cost recovery or place a lien on the property to cover the cost of cleanup. The exact consequences will depend on the circumstances. Site Managers should discuss recalcitrant owners/responsible parties with their Supervisor and Section Leader, who may then refer the issue to the OGC for guidance and any legal action that may be appropriate.
In addition, property owners, operators and responsible parties are expected to operate their petroleum storage facilities in compliance with all applicable regulations as a condition of cleanup eligibility. Consequences for significant and recurring non-compliance may include those outlined above.
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