The Department is proposing to amend Rules 62-772.300 and 62-772.401, F.A.C., to incorporate improvements that were identified based on experience gained implementing competitively procured petroleum contamination site rehabilitation procedures ...

NOTICE OF PROPOSED RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

RULE NOS.:RULE TITLES:

62-772.300Contractor Qualifications and Performance Reviews

62-772.401Alternative Contractor Selection

PURPOSE AND EFFECT: The Department is proposing to amend Rules 62-772.300 and 62-772.401, F.A.C., to incorporate improvements that were identified based on experience gained implementing competitively procured petroleum contamination site rehabilitation procedures during the past year. These rules were initially adopted with effective dates of June 13, 2014, and January 16, 2014, respectively. Amendments to these rules are being made to modify the contractor performance evaluation forms referenced in the rule to be more streamlined and objective, and to provide more options for owners and responsible parties of petroleum contaminated sites in the selection of competitively procured petroleum cleanup contractors.

SUMMARY: Rule 62-772.300, F.A.C., is being amended to modify the contractor performance evaluation forms referenced in this rule to focus on task assignment/purchase order completion, to be more streamlined and objective, to include an owner responsible party contractor performance survey form to more formally solicit their input, and to eliminate the annual performance evaluation which was recognized as being a redundant process. Rule 62‑772.401, F.A.C., is being amended to add an option for owners and responsible parties of sites with eligibility types that do not require a cost share, including the Early Detection Incentive Program under Section 376.3071(10), F.S., Petroleum Liability and Restoration Insurance Program under Section 376.3072. F.S., Abandoned Tank Restoration Program under Section 376.305(6), F.S., and Innocent Victim Petroleum Storage System Restoration Program under Section 376.30715, F.S., to select one of the competitively procured agency term contractors to work on their sites if they voluntarily enter into a cost share agreement that provides for them to pay 25% or more of the cleanup costs, or agree to a conditional closure in accordance with Chapter 62-780, F.A.C., with a demonstrated cost savings of 25% or more compared to an unconditional closure using current agency term contractor rates, or any combination of the two.

OTHER RULES INCORPORATING THIS RULE: 62-771.300, F.A.C.

EFFECT ON THOSE OTHER RULES: Amendments to Chapter 62-772, F.A.C., in this Notice of Proposed Rule, are not expected to have any significant impact on Rule 62-771.300, F.A.C.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST AND LEGISLATIVE RATIFICATION: The agency has determined that this rule will not have an impact on small business or likely increase directly or indirectly regulatory cost in excess of $200,000 in the aggregate within one year after implementation of the rule.  A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: As described above the amendments to Rule 62-772.300, F.A.C., modify and streamline the contractor evaluation forms that will be utilized by the Department to evaluate contractor performance and therefore will not have any adverse impact or regulatory costs. The amendments to Rule 62-772.400, F.A.C., allowing responsible parties the option to select a contractor to perform remediation at their site is completely voluntary and the site will be remediated regardless of the proposed amendment.  Therefore the amendments will not have an adverse impact or regulatory cost.

Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 287.0595, 376.303, 376.3071, F.S.

LAW IMPLEMENTED: 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.3071(12)(b), 376.30713, 376.30713(3)(a), 376.3071(13)(c), 376.30714, 376.30714(4), 376.30715, 376.30716, 376.3072, F.S.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW. (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: September 3, 2015, 9:00 a.m.

PLACE: Florida Department of Environmental Protection, Bob Martinez Center, 2600 Blair Stone Road, Conference Room 609, Tallahassee, Florida 32399

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this meeting is asked to advise the agency at least 48 hours before the meeting by contacting: Charles Williams, Environmental Manager, Florida Department of Environmental Protection, [e-mail], [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800) 955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Charles Williams, Department of Environmental Protection, 2600 Blair Stone Road, MS 4545, Tallahassee, Florida 32399-2400, telephone: [phone], email: [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

62-772.300 Contractor Qualifications and Performance Reviews.

(1) Minimum Qualifications. All contractors performing site assessment and remediation activities for state-funded sites under this Chapter must meet the following minimum qualifications:

(a) Demonstrate that the contractor meets all certification and license requirements imposed by law. The contractor shall possess and maintain or contract with firms which possess and maintain: a valid certificate of authorization (firm) to practice Professional Geology from the Florida Department of Business and Professional Regulation (DBPR) pursuant to Section 492.111, F.S.; and a valid certificate of authorization (firm) to practice Professional Engineering from the Florida Board of Professional Engineers (FBPE) pursuant to Sections 471.023, F.S., or demonstrate that they are doing business under their own given name and are not subject to the certificate of authorization requirement.

(b) Each contractor shall certify to the Department that the contractor: (This certification must be in writing and submitted to the Department’s Petroleum Restoration Program, Attn.: Contactor Qualification Coordinator, 2600 Blair Stone Road Blairstone Rd., Mail Station 4575, Tallahassee, Florida 32399-2400. Documentation submitted under Section 376.30711(2)(c), F.S., may be used to satisfy this requirement.)

1. through 5. No change.

(2) Procedures for Determining Qualified Vendors to Participate in Procurement Opportunities. Only qualified vendors can submit responses on a competitive solicitation for work. The following procedures apply to the competitive procurement of contracts under this Chapter in order to qualify potential vendors to respond to a competitive solicitation for work.

(a) Interested vendors shall submit documentation to the Department verifying that the vendor meets the minimum qualifications specified in subsection (1). This documentation must be in writing and submitted to the Department’s Petroleum Restoration Program, Attn.: Contactor Qualification Coordinator, 2600 Blair Stone Road Blairstone Rd., Mail Station 4575, Tallahassee, Florida 32399-2400. The Department will review the qualification documentation and notify each vendor of its determination regarding their qualification status. Only vendors that meet the minimum qualifications on the date of opening a response to a competitive solicitation for work shall be considered in the procurement process. Those vendors not meeting the minimum qualifications on the date of opening responses shall be determined unqualified and rejected from further consideration for that solicitation. The Department will indicate those vendors that were rejected in the posting of the Department’s decision for that solicitation as required in Rule 60A-1.021, F.A.C., (8-22-04) http://www.flrules.org/Gateway/reference.asp?No=Ref-03557 hereby adopted and incorporated by reference.

(b) through (c) No change.

(3) through (5) No change.

(6) Contractor Performance Review. The Department shall evaluate, with input from the responsible party and/or site owner, contractor performance at least after completion of each task assignment or purchase order under a term contract or completion of other non-term contracts using the Interim Contractor Performance Evaluation form number 01, dated ________ (6-13-14), (https://www.flrules.org/Gateway/reference.asp?No=Ref-05720) hereby adopted and incorporated by reference. and the Site Owner/Responsible Party Contractor Performance Survey Annually, the Department shall complete a review of each contractor on the work performed under a term contract during the state fiscal year using the Annual Contractor Performance Evaluation form, number 02, dated ________ (6-13-14), (https://www.flrules.org/Gateway/reference.asp?No=Ref-05721) hereby adopted and incorporated by reference. A copy of these forms can be obtained from the Division of Waste Management at its web site at www.dep.state.fl.us/waste or at 2600 Blair Stone Road Blairstone Rd., Tallahassee, Florida 32399. Contractor performance shall be considered prior to assignment of rehabilitation tasks, authorizing any contract renewals and determining retainage (and its release) pursuant to Section 376.3071(6) 376.30711(5)(c), F.S.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.30711, 376.30711(2)(b), (c), 376.30711(5)(c), (h), (i), 376.30713, 376.30714, 376.30715, 376.30716, 376.3072 FS. History‒New 6-13-14, Amended_________.

 

62-772.401 Alternative Contractor Selection.

(1) Low Scored Site Initiative (LSSI). For a site participating in the LSSI program under Section 376.3071(12)(b) 376.3071(11)(b), F.S., a participant will:

(a) through (b) No change.

(c) Agree to an informal quote process (using a request for written or electronic quote) administered by the Department in accordance with Rule 60A-1.002, F.A.C., using contractors that meet the minimum qualifications specified in Rule 62-772.300, F.A.C.

For the purpose of LSSI work, one contractor working on several site assessments shall not be considered circumvention as described in Section 287.057(9), F.S., since each site assessment is a single project, which is capped at $30,000 in accordance with Section 376.3071(12)(b) 376.3071(11)(b), F.S.

(2) The selection of the contractor for Preapproved Advanced Cleanup under Section 376.30713, F.S., the Petroleum Cleanup Participation Program under Section 376.3071(13), F.S., and Site Rehabilitation Funding Allocation Agreements under Section 376.30714, F.S., will be negotiated between the Department and the participant or applicant along with the terms and conditions of the contract or agreement. If the participant or applicant is providing 25% or more of the cleanup cost, or the site will reach a funding cap under Section 376.3072(2)(a)3., or (2)(d)2.c., or d., F.S., then the participant or applicant may select any agency term contractor. If the participant or applicant is providing less than 25% of the cleanup cost, the Department will follow subsections 62-772.400(3) through (5), F.A.C., for contractor selection.

(3) Voluntary Cost Share Agreements. For sites eligible for the Early Detection Incentive Program under Section 376.3071(10), F.S., Petroleum Liability and Restoration Insurance Program under Section 376.3072. F.S., Abandoned Tank Restoration Program under Section 376.305(6), F.S., or Innocent Victim Petroleum Storage System Restoration Program under Section 376.30715, F.S., the participant may select any agency term contractor for petroleum contaminated site response actions at sites where the Department and its agents have been granted site access, and where the participant enters into and complies with a voluntary cost share agreement that:

(a) Provides for the participant to pay 25% or more of the cleanup cost, or

(b) Incorporates agreement by the participant, and by the current real property owner(s) of the subject property if different from the participant, with a conditional closure in accordance with Rule 62-780.680(2) or 62-780.680(3), F.A.C., for which a cost savings of 25% or more was demonstrated based on site specific information compared to an unconditional closure using current agency term contractor rates, or

(c) Would result in any combination of options (a) and (b) above with a total cost savings of 25% or more of the expected cleanup costs.

(4) Voluntary Cost Share Agreements for Advanced Cleanup Sites. For sites eligible for consideration for advanced cleanup pursuant to Section 376.30713, F.S., and where the Department and its agents have been granted site access, a qualified applicant under Section 376.30713(2), F.S., may enter into a Voluntary Cost Share Agreement that identifies those sites which the applicant commits to include in future advanced cleanup applications to be submitted in accordance with Section 376.30713(2), F.S. The voluntary cost share agreement shall include a commitment for the qualified applicant to pay a cost share amount equal or greater than the amount specified under Section 376.30713(2)(a), F.S. The cost share agreement shall specify that the Department may terminate the voluntary cost share agreement where the qualified applicant fails to submit an application to bundle any listed sites, not already covered by an advance cleanup contract, within a subsequent open application period in which the qualified applicant is eligible to participate.

(5) Sites for which a participant or a qualified applicant have submitted a written request to enter into a voluntary cost share agreement and are negotiating with the Department in accordance with this subsection, shall not be subject to contractor assignment pursuant to subsections 62-772.400(3), (4) and (5), F.A.C., during the review and negotiation period, and while the participant or qualified applicant complies with the agreement once effective. The Department reserves the right to terminate negotiations if the participant or qualified applicant does not respond to requests for additional supporting documentation within 30 days of that person’s receipt of such a written request, or if a voluntary cost share agreement is not effective within 60 days of the date such a written agreement is sent to the participant or qualified applicant for execution. This provision does not change the requirement for cleanup funding based on the site priority ranking established pursuant to Section 376.3071(5)(a), F.S., except as otherwise provided for advanced cleanup sites under Section 376.30713, F.S.

(6) Sites submitted for a voluntary cost share agreement under paragraphs (3) or (4), and already subject to assignment to another qualified contractor for state-funded petroleum site rehabilitation under this chapter, shall continue under such assignment until the period of performance therein expires.

Rulemaking Authority 287.0595, 376.303, 376.3071 FS. Law Implemented 287.0595, 376.30, 376.301, 376.303, 376.305, 376.3071, 376.3071(12)(b) 376.3071(11)(b), 376.3071(13)(c), 376.30711, 376.30713, 376.30713(3)(a), 376.30714, 376.30714(4), 376.30715, 376.30716, 376.3072 FS. History–New 1-16-14, Amended_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Charles T. Williams, Environmental Manager

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan P. Steverson, Interim Secretary, Florida Department of Environmental Protection

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 24, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 29, 2014