House Bill hb1627

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    Florida House of Representatives - 2001                HB 1627

        By Representative Ryan






  1                      A bill to be entitled

  2         An act relating to environmental control;

  3         titling the act the "Florida Performance-Based

  4         Environmental Permitting Act"; providing

  5         legislative findings and public purpose;

  6         amending s. 403.087, F.S.; removing provisions

  7         relating to renewal of operation permits for

  8         specified domestic wastewater facilities,

  9         requirements for such renewal, and Department

10         of Environmental Protection recordkeeping

11         requirements with respect to such permits;

12         revising conditions under which the department

13         shall issue a permit to construct, operate,

14         maintain, expand, or modify an installation

15         which may reasonably be expected to be a source

16         of pollution; creating s. 403.0874, F.S.;

17         establishing the Performance-Based

18         Environmental Permit Program; providing

19         definitions; requiring applicants under the

20         Florida Air and Water Pollution Control Act to

21         submit specified information to the department;

22         requiring the department to consider the

23         compliance history of applicants; requiring the

24         department to review the compliance history of

25         applicants seeking review or modification of a

26         permit and applicants seeking a permit for a

27         new facility; creating a point schedule for

28         violations, and incidents leading to

29         violations, of environmental regulation for the

30         purpose of assessing applicants; requiring the

31         department to compute points based on the

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  1         schedule; providing basis for assignment of

  2         points; providing period of time during which

  3         points assessed against an applicant remain in

  4         effect; providing for burden of proof in

  5         proceedings challenging proposed agency action;

  6         providing a point threshold upon which the

  7         department is required to conduct a

  8         supplemental review and the applicant is

  9         required to submit an increased permit fee;

10         providing actions which may be taken by the

11         department subsequent to a supplemental review;

12         providing actions which may be taken by the

13         department and the applicant subsequent to a

14         denial by the department; providing factors to

15         be considered by the department prior to acting

16         pursuant to a supplemental review; providing

17         criteria to be considered in evaluating an

18         applicant's compliance program; providing

19         construction; providing that applicants meeting

20         certain criteria are eligible for specified

21         compliance incentives; providing procedure,

22         requirements, and eligibility criteria with

23         respect to such incentives; providing for

24         voluntary submission of prescribed compliance

25         forms; providing for application of the act;

26         amending s. 403.707, F.S.; removing provisions

27         relating to departmental refusal to issue a

28         permit under pt. IV of ch. 403, F.S., relating

29         to resource recovery and management, to

30         conform; amending ss. 403.703, 403.0871, and

31         403.0872, F.S.; correcting cross references;

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  1         reenacting ss. 366.825(3), 378.901(9),

  2         403.0881, 403.707(3), and 403.927(2), F.S., to

  3         incorporate the amendments to s. 403.087, F.S.,

  4         in references thereto; providing an effective

  5         date.

  6

  7  Be It Enacted by the Legislature of the State of Florida:

  8

  9         Section 1.  Short title.--This act shall be known and

10  cited as the "Florida Performance-Based Environmental

11  Permitting Act."

12         Section 2.  Legislative findings; public purpose.--

13         (1)  The Legislature finds and declares that:

14         (a)  The Department of Environmental Protection has

15  been delegated the authority to establish permitting programs

16  for the purpose of protecting human health and the

17  environment.

18         (b)  Applicants for department permits incur

19  significant expenses and invest substantial time and effort in

20  securing these permits. The department also invests

21  substantial resources in reviewing applications for such

22  permits.

23         (c)  In most cases, applicants for department permits

24  of a given type must submit the same application forms, must

25  submit the same level of detailed information, and must

26  receive the same level of scrutiny by the department,

27  regardless of their compliance history.

28         (d)  In most cases, applicants for department permits

29  of a given type receive a permit of the same duration,

30  regardless of their compliance history.

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  1         (e)  Applicants with a history of compliance should be

  2  provided with incentives to continue to act in the best

  3  interests of Florida's environment, while applicants for

  4  department permits who have a history of noncompliance should

  5  be required to meet more stringent requirements, and should

  6  sometimes be denied permits.

  7         (f)  The department considers the past performance of

  8  an applicant and its related entities when it determines

  9  whether the applicant has provided reasonable assurance that

10  it will comply with the requested permit and the law. The

11  department should also consider this compliance history in

12  determining the level of detail of the information submitted

13  for permit renewals, the degree of scrutiny a proposed project

14  requires, and the duration of a permit.

15         (g)  Permit decisionmaking that considers past

16  compliance history and customizes the permit in recognition of

17  that history increases protection for the environment:

18         1.  Because it encourages compliance;

19         2.  By allowing the department to focus financial and

20  personnel resources on those few in the regulated community

21  with a record of poor compliance; and

22         3.  Because it allows permit applicants with a

23  satisfactory record to better focus their resources.

24         (h)  In order to maximize the benefit of a permit

25  decisionmaking process that recognizes an applicant's

26  compliance history, the evaluation of the compliance history

27  should be performed in a clearer, more consistent, and

28  predictable manner.

29         (2)  It is therefore declared to be the purpose of this

30  act to:

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  1         (a)  Enhance the protection of the state's natural

  2  resources by establishing and making available to the

  3  regulated community incentives to encourage compliance and to

  4  reward those who meet or exceed compliance requirements;

  5         (b)  Provide the department with clear and specific

  6  authority to consider the compliance history of permit

  7  applicants and their related entities when evaluating

  8  reasonable assurance and when designing and implementing its

  9  permitting programs;

10         (c)  Clearly define the extent to which the department

11  may consider compliance history in its decisionmaking with

12  regard to permitting;

13         (d)  Provide the regulated community with a more

14  objective, unambiguous process for evaluating compliance

15  history; and

16         (e)  Promote objectivity and consistency in the

17  evaluation process throughout the state by establishing

18  criteria for the mandatory review of compliance history, the

19  measuring of violations through a point system, and the

20  defining of the potential permitting consequences.

21         Section 3.  Subsection (3) of section 403.087, Florida

22  Statutes, is repealed, subsections (4) through (9) are

23  renumbered as subsections (3) through (8), respectively, and

24  present subsection (5) of said section is renumbered and

25  amended, to read:

26         403.087  Permits; general issuance; denial; revocation;

27  prohibition; penalty.--

28         (3)  A renewal of an operation permit for a domestic

29  wastewater treatment facility other than a facility regulated

30  under the National Pollutant Discharge Elimination System

31  (NPDES) Program under s. 403.0885 must be issued upon request

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  1  for a term of up to 10 years, for the same fee and under the

  2  same conditions as a 5-year permit, in order to provide the

  3  owner or operator with a financial incentive, if:

  4         (a)  The waters from the treatment facility are not

  5  discharged to Class I municipal injection wells or the

  6  treatment facility is not required to comply with the federal

  7  standards under the Underground Injection Control Program

  8  under chapter 62-528 of the Florida Administrative Code;

  9         (b)  The treatment facility is not operating under a

10  temporary operating permit or a permit with an accompanying

11  administrative order and does not have any enforcement action

12  pending against it by the United States Environmental

13  Protection Agency, the department, or a local program approved

14  under s. 403.182;

15         (c)  The treatment facility has operated under an

16  operation permit for 5 years and, for at least the preceding 2

17  years, has generally operated in conformance with the limits

18  of permitted flows and other conditions specified in the

19  permit;

20         (d)  The department has reviewed the

21  discharge-monitoring reports required under department rule

22  and is satisfied that the reports are accurate;

23         (e)  The treatment facility has generally met water

24  quality standards in the preceding 2 years, except for

25  violations attributable to events beyond the control of the

26  treatment plant or its operator, such as destruction of

27  equipment by fire, wind, or other abnormal events that could

28  not reasonably be expected to occur; and

29         (f)  The department, or a local program approved under

30  s. 403.182, has conducted, in the preceding 12 months, an

31  inspection of the facility and has verified in writing to the

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  1  operator of the facility that it is not exceeding the

  2  permitted capacity and is in substantial compliance.

  3

  4  The department shall keep records of the number of 10-year

  5  permits applied for and the number and duration of permits

  6  issued for longer than 5 years.

  7         (4)(5)  The department shall issue permits to

  8  construct, operate, maintain, expand, or modify an

  9  installation which may reasonably be expected to be a source

10  of pollution only if the applicant affirmatively provides the

11  department with reasonable assurance that the proposed

12  activity will not cause or contribute to a violation of this

13  chapter, chapter 161, chapter 253, chapter 373, or chapter

14  376, where applicable, applicable department rules, or

15  applicable ordinances or regulations of a water management

16  district, or local government agency acting on behalf of the

17  department through a delegation or similar operating agreement

18  when it determines that the installation is provided or

19  equipped with pollution control facilities that will abate or

20  prevent pollution to the degree that will comply with the

21  standards or rules adopted by the department, except as

22  provided in s. 403.088 or s. 403.0872. However, separate

23  construction permits shall not be required for installations

24  permitted under s. 403.0885, except that the department may

25  require an owner or operator proposing to construct, expand,

26  or modify such an installation to submit for department

27  review, as part of application for permit or permit

28  modification, engineering plans, preliminary design reports,

29  or other information 90 days prior to commencing construction.

30  The department may also require the engineer of record or

31  another registered professional engineer, within 30 days after

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  1  construction is complete, to certify that the construction was

  2  completed in accordance with the plans submitted to the

  3  department, noting minor deviations which were necessary

  4  because of site-specific conditions.

  5         Section 4.  Section 403.0874, Florida Statutes, is

  6  created to read:

  7         403.0874  Performance-Based Environmental Permit

  8  Program.--

  9         (1)  For purposes of this section, the following terms

10  have the following meanings:

11         (a)  "Applicant" means the owner, operator, or

12  president of an existing or proposed installation, activity,

13  or facility, the construction or operation of which requires a

14  permit under the provisions of this chapter or chapter 161,

15  chapter 253, chapter 373, or chapter 376; and the proposed

16  permittee, if different from the owner or operator of such

17  installation, activity, or facility.

18         (b)  "Business entity" means a general or limited

19  partnership, limited liability company, public or private

20  corporation, syndicate, joint venture, or association. The

21  term also includes federal, state, and local government

22  agencies.

23         (c)  "Department" means the Department of Environmental

24  Protection. It also includes water management districts, local

25  government agencies acting on behalf of the department through

26  a delegation or other operating agreement, and the Board of

27  Trustees of the Internal Improvement Trust Fund.

28         (d)  "Department statutes" means chapters 161, 253,

29  373, 376, and 403, Florida Statutes.

30

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  1         (e)  "Incident" means a specific set of facts or

  2  circumstances resulting in one or more related violations at

  3  an installation, activity, or facility.

  4         (f)  "Related entities" means:

  5         1.  Any individual who is or was an officer, manager,

  6  or partner of the applicant during the 5 years preceding

  7  submission of a permit application, but only if that

  8  individual has or had operational control of the applicant or

  9  the applicant's environmental affairs during that period;

10         2.  Any other business entity in this state in which an

11  individual described in subparagraph 1. is or was an officer,

12  manager, or partner having operational control of the entity

13  or its environmental affairs, but only for the 5 years

14  preceding submission of the permit application and only for

15  the time period during which such individual was an officer,

16  manager, or partner;

17         3.  If the applicant is a business entity, a

18  stockholder owning 50 percent or more of the stock of the

19  entity; and

20         4.  If the applicant is a subsidiary corporation, the

21  parent of that corporation.

22

23  For purposes of this section, different state, county, or

24  municipal departments and different federal installations are

25  considered separate and unrelated business entities.

26         (2)  Unless specifically exempted by this section,

27  every applicant shall provide the department with the name and

28  address of the owner, the operator, and the permittee, or the

29  name and address of the president of the owner, the operator,

30  and the permittee, if it is a business entity, and any

31  information concerning any criminal convictions of the

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  1  applicant for which points may be assessed under subsection

  2  (7).

  3         (3)  Unless specifically exempted by this section:

  4         (a)  Every applicant for a permit to construct or

  5  operate a new installation, activity, or facility who has not

  6  held a department permit at any installation, activity, or

  7  facility during the 5 years preceding submission of an

  8  application shall report the names, addresses, and any

  9  information concerning any criminal convictions of any related

10  entities for which points may be assessed under subsection

11  (7); and

12         (b)  Every applicant for a permit to operate an

13  installation, activity, or facility that has been operated by

14  a related entity at any time during the 5 years preceding

15  submission of the application shall report the names,

16  addresses, and any information concerning any criminal

17  convictions of each related entity operating the installation,

18  activity, or facility during that period for which points may

19  be assessed under subsection (7).

20         (4)  The department shall establish by rule a form to

21  be used by permit applicants to report the information under

22  this section.

23         (5)  The department shall consider the compliance

24  history of the applicant and its related entities, if

25  applicable, for the 5-year period preceding the submission of

26  the application. The department shall consider these

27  compliance histories in conjunction with other relevant

28  factors when evaluating whether the applicant has provided

29  reasonable assurance.

30         (6)  If the applicant is seeking renewal or

31  modification of a permit, the department shall review the

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  1  compliance history of the applicant at the site at which the

  2  installation, activity, or facility for which renewal or

  3  modification is being sought is located. The department shall

  4  compute points for the applicant based on the point schedule

  5  contained in subsection (7) and assign those points to the

  6  applicant. If the applicant is seeking a permit for a new

  7  facility, the department shall review the compliance history

  8  of the applicant and its related entities, if applicable, at

  9  all sites in the state. The department shall compute the

10  points for all such violations based on the point schedule

11  contained in subsection (7), divide the total number of points

12  by the number of sites in this state owned or operated by the

13  applicant and its related entities, if applicable, and assign

14  the resulting average to the applicant. For the purpose of

15  this subsection, a "site" is a single parcel, or multiple

16  contiguous parcels, of land owned by the applicant or its

17  related entities, or on which the applicant or its related

18  entities conduct their operations.

19         (7)  Points shall be based upon incidents leading to

20  violations at each facility, not upon the number of violations

21  that may result from each incident. If the incident results in

22  multiple violations, points shall be assigned for the highest

23  scoring violation. The department shall use the following

24  point schedule:

25         (a)  Each incident resulting in a felony criminal

26  conviction of an environmental crime in this state, regardless

27  of whether adjudication was withheld: 15 points.

28         (b)  Each incident resulting in a misdemeanor

29  conviction of an environmental crime involving dishonesty,

30  fraud, deceit, or misrepresentation in this state, regardless

31  of whether adjudication was withheld: 10 points.

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  1         (c)  Each incident involving one or more of the

  2  following violations that was the subject of a consent order,

  3  notice of violation, final order, complaint, or final judgment

  4  entered or filed by a court of competent jurisdiction, the

  5  department, a water management district, or an approved local

  6  pollution control program:

  7         1.  A violation of department ambient air standards

  8  caused by an emission: 10 points.

  9         2.  A violation of a department air permit emission

10  limit in excess of 150 percent of the permitted limit: 10

11  points.

12         3.  A violation of visible emission limits in excess of

13  plus 30 percent opacity of the applicable opacity limit: 10

14  points.

15         4.  A violation in excess of 160 percent of water

16  quality criteria, or permit limits if applicable, caused by a

17  discharge: 10 points.

18         5.  A violation of the acute toxicity minimum criteria

19  for waters caused by a discharge: 10 points.

20         6.  A violation involving the circumvention of

21  pollution control equipment required by department rules,

22  statutes, orders, or permit conditions: 10 points.

23         7.  A violation involving the knowing submission of any

24  false statement, representation, or certification in any

25  application, record, report, plan, or other document filed or

26  required to be maintained by department rules, statutes,

27  orders, or permit conditions, or involving failure to install,

28  maintain, or operate, or falsifying, tampering with, or

29  knowingly rendering inaccurate, any monitoring device or

30  method required to be maintained by department rules,

31  statutes, orders, or permit conditions: 10 points.

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  1         8.  Dredging or filling an area in excess of 1 acre

  2  without a required permit: 10 points.

  3         9.  Illegal disposal of in excess of 20 cubic yards of

  4  Class 1 solid waste or any quantity of hazardous waste, as

  5  defined by department rule: 10 points.

  6         10.  Constructing or operating an installation,

  7  activity, or facility without a required permit, where the

  8  installation, activity, or facility was not permittable as

  9  constructed: 10 points.

10         11.  Constructing or operating an installation,

11  activity, or facility without a required permit, where the

12  installation, activity, or facility was permittable as

13  constructed: 5 points.

14         (d)  Each final judgment entered in favor of the

15  department resulting from a petition for enforcement: 10

16  points.

17         (8)  Each point shall remain in effect for a period of

18  5 years from the date of the underlying incident that resulted

19  in a violation, except that points in effect on the date an

20  applicant submits a permit application to the department will

21  remain in effect until the agency takes final action on the

22  permit application, even if more than 5 years have passed

23  since the violation occurred.

24         (9)  The department shall consider all violations

25  described in paragraph (7)(c) that were committed during the

26  relevant review period, whether or not they have been resolved

27  by consent order or formally adjudicated prior to the time the

28  department makes its determination on the application.

29  However, if no consent order, final order, or final judgment

30  has been entered, the violation must be established by

31  appropriate evidence in any subsequent proceeding challenging

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  1  the department's proposed agency action. In all such

  2  proceedings:

  3         (a)  The permit applicant has the initial burden in any

  4  proceeding challenging the proposed agency action of

  5  establishing a prima facie case that it has provided

  6  reasonable assurance and is entitled to the permit;

  7         (b)  The department, or any party seeking to establish

  8  violations under this subsection, then has the burden of

  9  presenting by appropriate evidence a prima facie case

10  supporting the violations it contends warrant denial of the

11  permit; and

12         (c)  The permit applicant retains the ultimate burden

13  of persuasion that it has provided reasonable assurance with

14  respect to all issues.

15         (10)  If an applicant has accumulated 15 points at the

16  time the application is submitted to the department, the

17  department shall conduct a supplemental review as part of the

18  permit review process. Notwithstanding any other provisions of

19  this chapter or chapter 161, chapter 253, chapter 373, or

20  chapter 376 that limit maximum permit fees, an applicant whose

21  points exceed the threshold shall be required to submit an

22  increased permit fee to be determined by the department

23  sufficient to cover the costs of the supplemental review. As a

24  result of the review, the department may, in its discretion,

25  take one or more of the following actions:

26         (a)  The department may issue a permit with an

27  accompanying administrative order. The administrative order

28  shall include a schedule for coming into compliance with

29  department rules, statutes, orders or permit conditions,

30  additional training or auditing procedures necessary to assure

31  compliance, stipulated penalties for noncompliance, and

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  1  financial assurance in the form of a bond or letter of credit

  2  sufficient to cover damages or cleanup costs which could

  3  foreseeably result from future violations. The applicant shall

  4  not be eligible for any permits to expand a facility unless it

  5  can provide reasonable assurance that it is in compliance with

  6  the permit and the accompanying administrative order and will

  7  remain in compliance in the foreseeable future.

  8         (b)  The department may require independent compliance

  9  audits or programs at the facility.

10         (c)  The department may issue a permit with a duration

11  of less than 5 years, if not prohibited by federal law.

12         (d)  The department may deny the permit.

13         1.  An applicant who has accumulated more than 15

14  points but less than 25 points and whose permit has been

15  denied under this subsection shall not be entitled to a permit

16  for the facility or activity for a period of 6 months from the

17  time a final order denying the permit has been entered.

18         2.  An applicant who had accumulated more than 25

19  points at the time the application is submitted and whose

20  permit has been denied under this subsection shall not be

21  entitled to a permit for the facility or activity for a period

22  of 1 year from the time a final order denying the permit has

23  been entered.

24         3.  After the applicable time period has passed, the

25  applicant may reapply for a permit, and the department shall

26  evaluate the applicant's compliance history in the same manner

27  it would have had the earlier permit application not been

28  denied.

29         (11)  In determining whether to take one or more

30  actions authorized under subsection (10), the department may

31  consider:

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  1         (a)  Whether the violations resulted in a significant

  2  threat to human health or the environment;

  3         (b)  Whether the violations establish a pattern of

  4  noncompliance or were isolated events, not likely to be

  5  repeated;

  6         (c)  Whether the applicant has developed a compliance

  7  program designed to eliminate or reduce the likelihood of

  8  similar violations reoccurring;

  9         (d)  Whether the violations involved regulatory

10  programs that are the same as, or similar to, the regulatory

11  program from which the permit is being requested;

12         (e)  Any relevant evidence offered in mitigation by the

13  applicant; and

14         (f)  Whether the applicant has acted reasonably to

15  resolve all previous violations by the applicant or its

16  related entities that have resulted in points being assessed

17  under this section.

18         (12)  In determining whether the applicant has

19  developed a compliance program designed to eliminate or reduce

20  the likelihood of reoccurrence of similar violations as

21  provided for in subsection (11), the department shall consider

22  the following criteria when evaluating such a compliance

23  program:

24         (a)  Whether the program establishes compliance

25  standards and procedures to be followed by the applicant's

26  employees and agents that are reasonably capable of reducing

27  the prospect of violations;

28         (b)  Whether the program provides that specific

29  individuals who have substantial control over the applicant or

30  who have a substantial role in the applicant's policymaking

31

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  1  have been assigned overall responsibility to oversee

  2  compliance with such standards and procedures;

  3         (c)  Whether the program provides that the applicant

  4  uses due care not to delegate substantial discretionary

  5  authority to individuals whom the applicant knows, or should

  6  have known through the exercise of due diligence, engaged in

  7  violations;

  8         (d)  Whether the program is communicated effectively to

  9  all employees and other agents by requiring routine

10  participation in training programs and by disseminating

11  publications that explain program requirements in a practical

12  manner;

13         (e)  Whether the program establishes monitoring and

14  auditing systems reasonably designed to detect environmental

15  violations by the applicant's employees and other agents, and

16  includes a readily available reporting system whereby

17  employees and other agents can report environmental violations

18  by others within the organization without fear of retribution;

19  and

20         (f)  Whether the compliance program can be consistently

21  enforced through appropriate disciplinary and incentive

22  mechanisms, including, as appropriate, discipline of

23  individuals responsible for the failure to detect an

24  environmental violation.

25         (13) General provisions:

26         (a)  Every permit application subject to this section

27  that is submitted to the department shall be accompanied by

28  the form described in subsection (5) in order to be considered

29  complete. During the permit review process, the form shall be

30  updated by the applicant to reflect any changes in the

31  compliance history of the applicant, and its related entities

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  1  if applicable, until such time as the application is

  2  determined to be complete.

  3         (b)  Nothing in this section precludes the department

  4  from attributing the acts of one individual or entity to

  5  another if such attribution is allowed under other existing

  6  principles of law. In such cases, the department shall have

  7  the burden of establishing the facts that allow such

  8  attribution.

  9         (c)  Nothing in this section shall prohibit the

10  department from considering the compliance history of an

11  applicant or its related entities when establishing specific

12  conditions in a permit, if such conditions are necessary for

13  reasonable assurance, nor shall this section be construed to

14  prohibit the department from considering the compliance

15  history of a person applying for a department permit or

16  license other than those specifically subject to this section,

17  including a general permit, when evaluating whether that

18  person is entitled to that permit or license.

19         (14)  Compliance incentives:

20         (a)  Any applicant who meets the criteria set forth in

21  paragraph (b) is eligible for the following incentives, unless

22  otherwise prohibited by statute, department rule, or federal

23  regulation, and provided that the applicant meets all other

24  applicable criteria for the issuance of a permit. In order to

25  obtain an incentive, the applicant must affirmatively request

26  it as part of the permit application.

27         1.  Extended permit. A renewal of an operation or

28  closure permit, which may include expansions or modifications

29  involving construction, shall be issued for a period of 5

30  years, and shall be automatically renewed for an additional 5

31  years without agency action under the following conditions:

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  1         a.  At least 90 days prior to the midway point of the

  2  extended permit, the applicant shall complete and submit the

  3  prescribed form to the department. Within 10 days after

  4  submission, the department shall conduct a review of the

  5  compliance history of the applicant and shall assign points in

  6  accordance with this section.

  7         b.  The applicant shall conduct at least one public

  8  meeting within 60 days after submission of the prescribed form

  9  to allow the public the opportunity to present concerns

10  regarding the compliance history of the applicant. The

11  department shall attend such meetings.

12         c.  If the applicant no longer meets the criteria set

13  forth in paragraph (b), the department shall deny the

14  automatic permit renewal, and shall require the applicant to

15  submit a permit renewal application in accordance with this

16  chapter.

17         d.  If the applicant seeks to transfer the extended

18  permit to another entity, the transferee shall complete and

19  submit the prescribed form as part of the transfer

20  application. If the department determines that the transferee

21  and its related entities have met the criteria set forth in

22  paragraph (b) over the previous 5 years, and if the transfer

23  complies with all other applicable criteria, the department

24  shall agree to the transfer of the extended permit.

25         2.  Short-form renewals. Renewal of permits may be made

26  upon a shortened application form prescribed by the department

27  specifying only the changes in the facility operation, or a

28  certification by the permittee that no changes in the facility

29  operation are proposed if that is the case. Applicants for

30  short-form renewals shall complete and submit the prescribed

31  compliance form with the application and shall remain subject

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  1  to the compliance history review under this section. This

  2  provision shall supplement any expedited review processes in

  3  department rules.

  4         (b)  Eligibility for compliance incentives shall be

  5  based upon a review of the compliance history of the applicant

  6  over the 5-year period preceding submission of the permit

  7  application. To be eligible for the incentives described in

  8  this subsection, the applicant must have operated the

  9  installation, facility, or activity for at least 5 years or,

10  if it is a new installation, facility, or activity, the

11  applicant must have operated a similar installation, facility,

12  or conducted a similar activity under a department permit for

13  at least 5 years, and the applicant must not have been the

14  subject of any department notice of violation, consent order,

15  final order, complaint, or final judgment, except for consent

16  orders entered to facilitate cleanup of environmental

17  contamination under the following circumstances, provided that

18  the consent order expressly acknowledges the existence of the

19  pertinent condition:

20         1.  The contamination was expressly authorized by an

21  emergency order issued by the department before the

22  contamination occurred and the respondent complied with the

23  terms of the emergency order;

24         2.  The contamination was caused by a hurricane,

25  tropical storm, tornado, or similar meteorological event, and

26  the permitted facility was constructed in accordance with the

27  department's design criteria or permit, was maintained and

28  operated in accordance with all applicable department rules,

29  and if the respondent took all feasible precautions to prevent

30  or minimize the discharge causing the contamination;

31

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  1         3.  The contamination was caused by vandalism by a

  2  person not employed by or under contract with the respondent,

  3  if the respondent took all reasonable precautions to prevent

  4  any such vandalism; or

  5         4.  The respondent is the owner of contaminated

  6  property for which cleanup is authorized by the consent order

  7  and which the owner voluntarily agrees to clean up, if the

  8  contamination was caused by a third party whose acts cannot be

  9  imputed to the respondent under common law, chapter 376, or

10  chapter 403.

11         (c)  Notwithstanding the provisions of this subsection,

12  an applicant may voluntarily submit the prescribed compliance

13  form in order to demonstrate that it has had a consistently

14  good compliance history, which may include the period before

15  July 1, 2001. If the applicant can demonstrate that the

16  applicant, and its related entities if relevant, would have

17  met the requirements set forth in paragraph (b) during the

18  5-year period preceding submission of the permit application

19  had this act been in effect during the entire 5-year period,

20  the applicant shall be eligible for the compliance incentives

21  set forth in this subsection.

22         (15)  This section shall apply to all permit

23  applications submitted to the department on or after July 1,

24  2001, unless otherwise specifically provided by statute,

25  department rule, or federal regulation. This section does not

26  apply to general permit notifications, and only subsection

27  (14) shall apply to closure permit applications. Crimes and

28  violations referenced in this section shall include only those

29  based upon incidents that occurred on or after July 1, 2001.

30  The department may, on a case-by-case basis, take into

31  consideration, pursuant to Rule 62-4.070, Florida

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  1  Administrative Code, a permit applicant's violation of any

  2  department rules or environmental statutes that occurred prior

  3  to July 1, 2001, when determining whether the applicant has

  4  provided reasonable assurance of compliance, even if the

  5  permit application is submitted on or after July 1, 2001.

  6         Section 5.  Subsection (8) of section 403.707, Florida

  7  Statutes, is repealed:

  8         403.707 Permits.--

  9         (8)  The department may refuse to issue a permit to an

10  applicant who by past conduct in this state has repeatedly

11  violated pertinent statutes, rules, or orders or permit terms

12  or conditions relating to any solid waste management facility

13  and who is deemed to be irresponsible as defined by department

14  rule. For the purposes of this subsection, an applicant

15  includes the owner or operator of the facility, or if the

16  owner or operator is a business entity, a parent of a

17  subsidiary corporation, a partner, a corporate officer or

18  director, or a stockholder holding more than 50 percent of the

19  stock of the corporation.

20         Section 6.  Paragraph (b) of subsection (17) of section

21  403.703, Florida Statutes, is amended to read:

22         403.703  Definitions.--As used in this act, unless the

23  context clearly indicates otherwise, the term:

24         (17)  "Construction and demolition debris" means

25  discarded materials generally considered to be not

26  water-soluble and nonhazardous in nature, including, but not

27  limited to, steel, glass, brick, concrete, asphalt roofing

28  material, pipe, gypsum wallboard, and lumber, from the

29  construction or destruction of a structure as part of a

30  construction or demolition project or from the renovation of a

31  structure, and including rocks, soils, tree remains, trees,

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  1  and other vegetative matter that normally results from land

  2  clearing or land development operations for a construction

  3  project, including such debris from construction of structures

  4  at a site remote from the construction or demolition project

  5  site. Mixing of construction and demolition debris with other

  6  types of solid waste will cause it to be classified as other

  7  than construction and demolition debris. The term also

  8  includes:

  9         (b)  Except as provided in s. 403.707(11)(12)(j),

10  unpainted, nontreated wood scraps from facilities

11  manufacturing materials used for construction of structures or

12  their components and unpainted, nontreated wood pallets

13  provided the wood scraps and pallets are separated from other

14  solid waste where generated and the generator of such wood

15  scraps or pallets implements reasonable practices of the

16  generating industry to minimize the commingling of wood scraps

17  or pallets with other solid waste; and

18         Section 7.  Section 403.0871, Florida Statutes, is

19  amended to read:

20         403.0871  Florida Permit Fee Trust Fund.--There is

21  established within the department a nonlapsing trust fund to

22  be known as the "Florida Permit Fee Trust Fund." All funds

23  received from applicants for permits pursuant to ss. 161.041,

24  161.053, 161.0535, 403.087(5)(6), and 403.861(8) shall be

25  deposited in the Florida Permit Fee Trust Fund and shall be

26  used by the department with the advice and consent of the

27  Legislature to supplement appropriations and other funds

28  received by the department for the administration of its

29  responsibilities under this chapter and chapter 161.  In no

30  case shall funds from the Florida Permit Fee Trust Fund be

31

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  1  used for salary increases without the approval of the

  2  Legislature.

  3         Section 8.  Paragraph (a) of subsection (11) of section

  4  403.0872, Florida Statutes, is amended to read:

  5         403.0872  Operation permits for major sources of air

  6  pollution; annual operation license fee.--Provided that

  7  program approval pursuant to 42 U.S.C. s. 7661a has been

  8  received from the United States Environmental Protection

  9  Agency, beginning January 2, 1995, each major source of air

10  pollution, including electrical power plants certified under

11  s. 403.511, must obtain from the department an operation

12  permit for a major source of air pollution under this section.

13  This operation permit is the only department operation permit

14  for a major source of air pollution required for such source;

15  provided, at the applicant's request, the department shall

16  issue a separate acid rain permit for a major source of air

17  pollution that is an affected source within the meaning of 42

18  U.S.C. s. 7651a(1). Operation permits for major sources of air

19  pollution, except general permits issued pursuant to s.

20  403.814, must be issued in accordance with the procedures

21  contained in this section and in accordance with chapter 120;

22  however, to the extent that chapter 120 is inconsistent with

23  the provisions of this section, the procedures contained in

24  this section prevail.

25         (11)  Each major source of air pollution permitted to

26  operate in this state must pay between January 15 and March 1

27  of each year, upon written notice from the department, an

28  annual operation license fee in an amount determined by

29  department rule. The annual operation license fee shall be

30  terminated immediately in the event the United States

31  Environmental Protection Agency imposes annual fees solely to

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  1  implement and administer the major source air-operation permit

  2  program in Florida under 40 C.F.R. s. 70.10(d).

  3         (a)  The annual fee must be assessed based upon the

  4  source's previous year's emissions and must be calculated by

  5  multiplying the applicable annual operation license fee factor

  6  times the tons of each regulated air pollutant (except carbon

  7  monoxide) allowed to be emitted per hour by specific condition

  8  of the source's most recent construction or operation permit,

  9  times the annual hours of operation allowed by permit

10  condition; provided, however, that:

11         1.  The license fee factor is $25 or another amount

12  determined by department rule which ensures that the revenue

13  provided by each year's operation license fees is sufficient

14  to cover all reasonable direct and indirect costs of the major

15  stationary source air-operation permit program established by

16  this section. The license fee factor may be increased beyond

17  $25 only if the secretary of the department affirmatively

18  finds that a shortage of revenue for support of the major

19  stationary source air-operation permit program will occur in

20  the absence of a fee factor adjustment. The annual license fee

21  factor may never exceed $35.

22         2.  For any source that operates for fewer hours during

23  the calendar year than allowed under its permit, the annual

24  fee calculation must be based upon actual hours of operation

25  rather than allowable hours if the owner or operator of the

26  source documents the source's actual hours of operation for

27  the calendar year. For any source that has an emissions limit

28  that is dependent upon the type of fuel burned, the annual fee

29  calculation must be based on the emissions limit applicable

30  during actual hours of operation.

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  1         3.  For any source whose allowable emission limitation

  2  is specified by permit per units of material input or heat

  3  input or product output, the applicable input or production

  4  amount may be used to calculate the allowable emissions if the

  5  owner or operator of the source documents the actual input or

  6  production amount. If the input or production amount is not

  7  documented, the maximum allowable input or production amount

  8  specified in the permit must be used to calculate the

  9  allowable emissions.

10         4.  For any new source that does not receive its first

11  operation permit until after the beginning of a calendar year,

12  the annual fee for the year must be reduced pro rata to

13  reflect the period during which the source was not allowed to

14  operate.

15         5.  For any source that emits less of any regulated air

16  pollutant than allowed by permit condition, the annual fee

17  calculation for such pollutant must be based upon actual

18  emissions rather than allowable emissions if the owner or

19  operator documents the source's actual emissions by means of

20  data from a department-approved certified continuous emissions

21  monitor or from an emissions monitoring method which has been

22  approved by the United States Environmental Protection Agency

23  under the regulations implementing 42 U.S.C. ss. 7651 et seq.,

24  or from a method approved by the department for purposes of

25  this section.

26         6.  The amount of each regulated air pollutant in

27  excess of 4,000 tons per year allowed to be emitted by any

28  source, or group of sources belonging to the same Major Group

29  as described in the Standard Industrial Classification Manual,

30  1987, may not be included in the calculation of the fee. Any

31  source, or group of sources, which does not emit any regulated

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  1  air pollutant in excess of 4,000 tons per year, is allowed a

  2  one-time credit not to exceed 25 percent of the first annual

  3  licensing fee for the prorated portion of existing

  4  air-operation permit application fees remaining upon

  5  commencement of the annual licensing fees.

  6         7.  If the department has not received the fee by

  7  February 15 of the calendar year, the permittee must be sent a

  8  written warning of the consequences for failing to pay the fee

  9  by March 1. If the fee is not postmarked by March 1 of the

10  calendar year, the department shall impose, in addition to the

11  fee, a penalty of 50 percent of the amount of the fee, plus

12  interest on such amount computed in accordance with s.

13  220.807. The department may not impose such penalty or

14  interest on any amount underpaid, provided that the permittee

15  has timely remitted payment of at least 90 percent of the

16  amount determined to be due and remits full payment within 60

17  days after receipt of notice of the amount underpaid.  The

18  department may waive the collection of underpayment and shall

19  not be required to refund overpayment of the fee, if the

20  amount due is less than 1 percent of the fee, up to $50. The

21  department may revoke any major air pollution source operation

22  permit if it finds that the permitholder has failed to timely

23  pay any required annual operation license fee, penalty, or

24  interest.

25         8.  Notwithstanding the computational provisions of

26  this subsection, the annual operation license fee for any

27  source subject to this section shall not be less than $250,

28  except that the annual operation license fee for sources

29  permitted solely through general permits issued under s.

30  403.814 shall not exceed $50 per year.

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  1         9.  Notwithstanding the provisions of s.

  2  403.087(5)(6)(a)4.a., authorizing air pollution construction

  3  permit fees, the department may not require such fees for

  4  changes or additions to a major source of air pollution

  5  permitted pursuant to this section, unless the activity

  6  triggers permitting requirements under Title I, Part C or Part

  7  D, of the federal Clean Air Act, 42 U.S.C. ss. 7470-7514a.

  8  Costs to issue and administer such permits shall be considered

  9  direct and indirect costs of the major stationary source

10  air-operation permit program under s. 403.0873. The department

11  shall, however, require fees pursuant to the provisions of s.

12  403.087(5)(6)(a)4.a. for the construction of a new major

13  source of air pollution that will be subject to the permitting

14  requirements of this section once constructed and for

15  activities triggering permitting requirements under Title I,

16  Part C or Part D, of the federal Clean Air Act, 42 U.S.C. ss.

17  7470-7514a.

18         Section 9.  For the purpose of incorporating the

19  amendments to section 403.087, Florida Statutes, in references

20  thereto, the sections or subdivisions of Florida Statutes set

21  forth below are reenacted to read:

22         366.825  Clean Air Act compliance; definitions; goals;

23  plans.--

24         (3)  The commission shall review a plan to implement

25  the Clean Air Act compliance submitted by public utilities

26  pursuant to this section in order to determine whether such

27  plans, the costs necessarily incurred in implementing such

28  plans, and any effect on rates resulting from such

29  implementation are in the public interest. The commission

30  shall by order approve or disapprove plans to implement

31  compliance submitted by public utilities within 8 months after

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  1  the date of filing. Approval of a plan submitted by a public

  2  utility shall establish that the utility's plan to implement

  3  compliance is prudent and the commission shall retain

  4  jurisdiction to determine in a subsequent proceeding that the

  5  actual costs of implementing the compliance plan are

  6  reasonable; provided, however, that nothing in this section

  7  shall be construed to interfere with the authority of the

  8  Department of Environmental Protection to determine whether a

  9  public utility is in compliance with ss. 403.087 and 403.0872

10  or the State Air Implementation Plan for the Clean Air Act.

11         378.901  Life-of-the-mine permit.--

12         (9)  Each operator of a mine that has received

13  construction approval in accordance with s. 403.087, s.

14  403.088, former part VIII of chapter 403, or part IV of

15  chapter 373 in response to an application which was submitted

16  prior to July 1, 1995, may elect either to seek renewal of

17  that permit or to seek a life-of-the-mine permit for all new

18  or existing activities that require a permit. Life-of-the-mine

19  permit applications for existing fuller's earth mining

20  activities must be reviewed as set forth in s. 373.414(15).

21         403.0881  Wastewater or reuse or disposal systems or

22  water treatment works; construction permits.--The department

23  may issue construction permits under s. 403.087 for wastewater

24  systems, treatment works, or reuse or disposal systems based

25  upon review of a preliminary design report, application forms,

26  and other required information, all of which shall be

27  formulated by department rule.  Detailed construction plans

28  and specifications shall not be required prior to issuance of

29  a permit or a modification to a permit required under s.

30  403.087 or an operation permit required under s. 403.0885

31  unless such plans and specifications are required to secure

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  1  federal funding and the project is expected to receive federal

  2  funding.  Upon a demonstration that a system constructed in

  3  accordance with a construction permit issued pursuant to s.

  4  403.087 operates as designed, the department shall issue a

  5  permit for operation of the system.  However, an operation

  6  permit may be issued prior to the initiation of discharge,

  7  provided the department has reasonable assurance, based on the

  8  system design, that the provisions of s. 403.088 will be met.

  9         403.707  Permits.--

10         (3)  All applicable provisions of ss. 403.087 and

11  403.088, relating to permits, apply to the control of solid

12  waste management facilities.

13         403.927  Use of water in farming and forestry

14  activities.--

15         (2)  Agricultural activities and agricultural water

16  management systems are authorized by this section and are not

17  subject to the provisions of s. 403.087 or ss. 403.91-403.929.

18  Except for aquaculture water management systems located within

19  waters of the state, the department shall not enforce water

20  quality standards within an agricultural water management

21  system.  The department may require a stormwater permit or

22  appropriate discharge permit at the ultimate point of

23  discharge from an agricultural water management system or a

24  group of connected agricultural water management systems.

25  Impacts of agricultural activities and agricultural water

26  management systems on groundwater quality shall be regulated

27  by water management districts.

28         Section 10.  This act shall take effect July 1, 2001.

29

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates the "Florida Performance-Based Environmental
  4    Permitting Act." Provides legislative findings and public
      purpose. Removes provisions relating to renewal of
  5    operation permits for specified domestic wastewater
      facilities, requirements for such renewal, and Department
  6    of Environmental Protection recordkeeping requirements
      with respect to such permits. Revises conditions under
  7    which the department shall issue a permit to construct,
      operate, maintain, expand, or modify an installation
  8    which may reasonably be expected to be a source of
      pollution.
  9

10    Establishes the Performance-Based Environmental Permit
      Program. Defines terms for purposes of the act. Requires
11    applicants under the Florida Air and Water Pollution
      Control Act to submit specified information to the
12    department. Requires the department to consider and
      review the compliance history of applicants seeking
13    review or modification of a permit and applicants seeking
      a permit for a new facility. Creates a point schedule for
14    violations of environmental regulation for the purpose of
      assessing applicants. Requires the department to compute
15    points based on the schedule, provides the basis for
      assignment of points, and the period of time during which
16    points assessed against an applicant remain in effect.
      Provides for burden of proof in proceedings challenging
17    proposed agency action. Provides a point threshold upon
      which the department is required to conduct a
18    supplemental review and the applicant is required to
      submit an increased permit fee. Provides actions which
19    may be taken by the department subsequent to a
      supplemental review and actions which may be taken by the
20    department and the applicant subsequent to a denial by
      the department. Provides factors to be considered by the
21    department prior to acting pursuant to a supplemental
      review. Provides factors and criteria to be considered in
22    evaluating an applicant's compliance program. Provides
      that applicants meeting certain criteria are eligible for
23    specified compliance incentives. Provides procedure,
      requirements, and eligibility criteria with respect to
24    such incentives. Provides for voluntary submission of
      prescribed compliance forms. Provides for application of
25    the act.

26

27

28

29

30

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