CopyCited 17 times | Published | Florida 1st District Court of Appeal
...A petroleum discharge took place while the Trust's notice of eligibility for FPLRIP was in effect, but was reported only during the subsequent "tail" period specified in the insurance policy on which the Trust's notice of eligibility was predicated. Because section 376.3072, Florida Statutes (1997), renders the Trust eligible for FPLRIP participation in these circumstances, we reverse....
...al discharge of petroleum. See 40 C.F.R. § 280.93(a) (1998). Obtaining private insurance on specified terms that render the owner or operator eligible for participation in FPLRIP is one way to demonstrate the requisite financial responsibility. See § 376.3072(2)(b)(2.), Fla....
...§ 280.97 (1998). If such private insurance is selected, federal law requires [1] and FPLRIP supplies "first-dollar coverage" up to $150,000, subject to a deductible of $10,000 (or other amount set out in the policy), and private insurance provides the excess. See § 376.3072(2)(d)(2.)(d.), Fla....
...and Selma Knio land on which an abandoned gas station was located, the Trust obtained petroleum liability insurance from a private insurer, Commerce and Industry Insurance Company, as contemplated by 40 C.F.R. § 280.93(a)(1) & (b)(1) (1998), and filed a certificate of insurance with DEP pursuant to section 376.3072(2)(b)(2.), Florida Statutes (1997)....
...Claims reported under such extended reporting period are subject to the terms, conditions, limits, including limits of liability and exclusions of the policy. (Emphasis supplied.) Based on this certificate, DEP issued a notice of eligibility for September 3, 1997, through September 3, 1998, under section 376.3072(2)(b)(2.), Florida Statutes (1997), and 40 C.F.R....
...Thereafter, the Trust applied to DEP for restoration coverage under the FPLRIP. On October 21, 1998, DEP proposed to deny the Trust's application, stating as grounds that, after September 3, 1998, the Trust was "not properly enrolled in FPLRIP" under section 376.3072(2)(b)(2.), Florida Statutes (1997), because the Trust did not renew the insurance policy....
...most likely occurred prior to September 3, 1998, within the Policy period. The discharge was reported to the *420 Department within the extended reporting period recited in the Certificate of Insurance." Even so, eligibility was denied below based on DEP's interpretation of section 376.3072(2)(b)(2.) & (4.), Florida Statutes (1997), which provides: 2....
...As the excerpt from the Federal Register attests, the six-month "extended reporting period" was created to deal with just such contingencies. The DEP's argument that the Trust has not "obtained and maintained" the insurance necessary to demonstrate financial responsibility under section 376.3072, Florida Statutes (1997), does not withstand scrutiny....
...NOTES [1] Under 42 U.S.C. § 6991c & 6991d (1998), "federal regulations allow a state to implement, with EPA approval, its own UST program to take the place of the federal program." Zurich Am. Ins. Co. v. Whittier Props., Inc.,
356 F.3d 1132, 1135 (9th Cir.2004). Section
376.3072, Florida Statutes (1997), implements Florida's underground storage tank program by establishing the FPLRIP, which is intended to "provide restoration funding assistance to facilities regulated by the [DEP's] petroleum storage tank rules." §
376.3072(1), Fla....
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CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 7940, 1993 WL 284587
...At all times material to this proceeding, Hughes held, and was the name insured of, an effective third party pollution liability insurance policy (No. FPL 7622685 — Renewal No. FPL 7621566) applicable to the Facility that was issued in accordance with, and qualified under, Section 376.3072, Florida Statutes....
...The discharge was diesel fuel as indicated by the DRF and a “petroleum product” as defined in Section 376.3-1(14), Florida Statutes. 12. The discharge reported in the DRF constitutes a “discharge” as defined in Section
376.301(4), Florida Statutes, which constitutes an “incident” as defined in Section
376.3072(2)(c), Florida Statutes, and as described in Rule 17-769.600, Florida Administrative Code....
...Hughes timely appealed the Secretary’s final order. We affirm. Hughes contends that the failure to comply with certain time deadlines contained in the Florida Administrative Code does not constitute lack of “substantial compliance” with the Code provisions as required by Section 376.3072 and therefore does not render Hughes ineligible for coverage under PLIRP. DER, on the other hand, maintains that the overriding legislative intent of section 376.3072 is to encourage prompt *1060 and immediate action to contain, remove, and abate discharge of pollutants....
...Therefore, time is of the essence in addressing a discharge, and Hughes’ delay in doing so violated, in a substantial manner, the Code provisions which contain express time deadlines for accomplishment of certain cleanup tasks. The substantial compliance requirement is contained in Section 376.3072(3)(a): (3)(a) ELIGIBILITY FOR PARTICIPATION....
...shall immediately undertake to contain, remove, and abate the discharge ... (2) If the person causing the discharge, or the person in charge of facilities at which the discharge has taken place, fails to act immediately, the department may arrange for the removal of the pollutant ... (emphasis added) Section 376.3072(2), which describes the scope and type of coverage afforded under PLIRP, further emphasizes the need for immediate action: In order for an eligible owner or operator to participate in the restoration program, the owner or operator mu...
...mmediate testing or emptying was necessary. Merely because Hughes was permitted into the program and paid the premiums does not entitle it to violate the statutory and rule conditions for continued coverage. Hughes asserts that the 1992 amendment to section 376.3072 is dispositive. Section 376.3072(2)(b)3 provides: To be eligible, the facility shall be in compliance with the Department rules as demonstrated at the most recent inspection conducted by the Department or the insured demonstrates that any necessary corrective action...
