HOUSE AMENDMENT
                                                  Bill No. HB 1635   Barcode 374085
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1                                 .                    
                                   .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5                                           ORIGINAL STAMP BELOW
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  The Committee on Natural Resources & Environmental Protection
12  offered the following:
13  
14         Amendment (with title amendment) 
15  Remove from the bill:  Everything after the enacting clause
16  
17  and insert in lieu thereof:  
18         Section 1.  Paragraph (k) is added to subsection (3) of
19  section 369.25, Florida Statutes, to read:
20         369.25  Aquatic plants; definitions; permits; powers of
21  department; penalties.--
22         (3)  The department has the following powers:
23         (k)  To enforce this chapter in the same manner and to
24  the same extent as provided in ss. 403.121, 403.131, 403.141,
25  and 403.161.
26         Section 2.  Section 403.121, Florida Statutes, is
27  amended to read:
28         403.121  Enforcement; procedure; remedies.--The
29  department shall have the following judicial and
30  administrative remedies available to it for violations of this
31  chapter, as specified in s. 403.161(1).
                                  1
    File original & 9 copies    04/06/01                          
    hep0001                     11:27 am         01635-nrep-374085

HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 (1) Judicial remedies: 2 (a) The department may institute a civil action in a 3 court of competent jurisdiction to establish liability and to 4 recover damages for any injury to the air, waters, or 5 property, including animal, plant, and aquatic life, of the 6 state caused by any violation. 7 (b) The department may institute a civil action in a 8 court of competent jurisdiction to impose and to recover a 9 civil penalty for each violation in an amount of not more than 10 $10,000 per offense. However, the court may receive evidence 11 in mitigation. Each day during any portion of which such 12 violation occurs constitutes a separate offense. 13 (c) Except as provided in paragraph (2)(c), it shall 14 not be a defense to, or ground for dismissal of, these 15 judicial remedies for damages and civil penalties that the 16 department has failed to exhaust its administrative remedies, 17 has failed to serve a notice of violation, or has failed to 18 hold an administrative hearing prior to the institution of a 19 civil action. 20 (2) Administrative remedies: 21 (a) The department may institute an administrative 22 proceeding to establish liability and to recover damages for 23 any injury to the air, waters, or property, including animal, 24 plant, or aquatic life, of the state caused by any violation. 25 The department may order that the violator pay a specified sum 26 as damages to the state. Judgment for the amount of damages 27 determined by the department may be entered in any court 28 having jurisdiction thereof and may be enforced as any other 29 judgment. 30 (b) If the department has reason to believe a 31 violation has occurred, it may institute an administrative 2 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 proceeding to order the prevention, abatement, or control of 2 the conditions creating the violation or other appropriate 3 corrective action. Except for violations involving hazardous 4 wastes, asbestos, or underground injection, the department 5 shall proceed administratively in all cases in which the 6 department seeks administrative penalties that do not exceed 7 $10,000 per assessment as calculated in accordance with 8 subsections (3), (4), (5), (6), and (7). The department shall 9 not impose administrative penalties in excess of $10,000 in a 10 notice of violation. The department shall not have more than 11 one notice of violation seeking administrative penalties 12 pending against the same party at the same time unless the 13 violations occurred at a different site or the violations were 14 discovered by the department subsequent to the filing of a 15 previous notice of violation. 16 (c) An administrative proceeding shall be instituted 17 by the department's serving of a written notice of violation 18 upon the alleged violator by certified mail. If the department 19 is unable to effect service by certified mail, the notice of 20 violation may be hand-delivered or personally served in 21 accordance with chapter 48. The notice shall specify the 22 provision of the law, rule, regulation, permit, certification, 23 or order of the department alleged to be violated and the 24 facts alleged to constitute a violation thereof. An order for 25 corrective action, penalty assessment, or damages may be 26 included with the notice. When the department is seeking to 27 impose an administrative penalty for any violation by issuing 28 a notice of violation, any corrective action needed to correct 29 the violation or damages caused by the violation must be 30 pursued in the notice of violation or they are waived. 31 However, no order shall become effective until after service 3 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 and an administrative hearing, if requested within 20 days 2 after service. Failure to request an administrative hearing 3 within this time period shall constitute a waiver thereof, 4 unless the respondent files a written notice with the 5 department within this time period opting out of the 6 administrative process initiated by the department to impose 7 administrative penalties. Any respondent choosing to opt out 8 of the administrative process initiated by the department in 9 an action that seeks the imposition of administrative 10 penalties must file a written notice with the department 11 within 20 days after service of the notice of violation opting 12 out of the administrative process. A respondent's decision to 13 opt out of the administrative process does not preclude the 14 department from initiating a state court action seeking 15 injunctive relief, damages and the judicial imposition of 16 civil penalties. 17 (d) If a person timely files a petition challenging a 18 notice of violation, that person will thereafter be referred 19 to as the respondent. The hearing requested by the respondent 20 shall be held within 180 days after the department has 21 referred the initial petition to the Division of 22 Administrative Hearings unless the parties agree to a later 23 date. The department has the burden of proving with the 24 preponderance of the evidence that the respondent is 25 responsible for the violation. No administrative penalties 26 should be imposed unless the department satisfies that burden. 27 Following the close of the hearing, the administrative law 28 judge shall issue a final order on all matters, including the 29 imposition of an administrative penalty. When the department 30 seeks to enforce that portion of a final order imposing 31 administrative penalties pursuant to s. 120.69, the respondent 4 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 shall not assert as a defense the inappropriateness of the 2 administrative remedy. The department retains its final-order 3 authority in all administrative actions that do not request 4 the imposition of administrative penalties. 5 (e) After filing a petition requesting a formal 6 hearing in response to a notice of violation in which the 7 department imposes an administrative penalty, a respondent may 8 request that a private mediator be appointed to mediate the 9 dispute by contacting the Florida Conflict Resolution 10 Consortium within 10 days after receipt of the Initial Order 11 from the administrative law judge. The Florida Conflict 12 Resolution Consortium shall pay all of the costs of the 13 mediator and for up to 8 hours of the mediator's time per case 14 at $150 per hour. Upon notice from the respondent, the Florida 15 Conflict Resolution Consortium shall provide a panel of 16 possible mediators from the area in which the hearing on the 17 petition would be heard to the respondent. The respondent 18 shall select the mediator and notify the Florida Conflict 19 Resolution Consortium of the selection within 15 days of 20 receipt of the proposed panel of mediators. The Florida 21 Conflict Resolution Consortium shall provide all of the 22 administrative support for the mediation process. The 23 mediation must be completed at least 15 days before the 24 final-hearing date set by the administrative law judge. 25 (f) In any administrative proceeding brought by the 26 department, the prevailing party shall recover all costs as 27 provided in ss. 57.041 and 57.071. The costs must be included 28 in the final order. The respondent is the prevailing party 29 when an order is entered awarding no penalties to the 30 department and such order has not been reversed on appeal or 31 the time for seeking judicial review has expired. The 5 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 respondent shall be entitled to an award of attorney's fees if 2 the administrative law judge determines that the notice of 3 violation initiated by the department seeking the imposition 4 of administrative penalties was not substantially justified as 5 defined in s. 57.111(3)(e). No award of attorney's fees as 6 provided by this subsection shall exceed $15,000. 7 (g)(d) Nothing herein shall be construed as preventing 8 any other legal or administrative action in accordance with 9 law. Nothing in this subsection shall limit the department's 10 authority provided in ss. 403.121, 403.131, and 403.141, to 11 judicially pursue injunctive relief. When the department 12 exercises its authority to judicially pursue injunctive 13 relief, penalties in any amount up to the statutory maximum 14 sought by the department must be pursued as part of the state 15 court action and not by initiating a separate administrative 16 proceeding. The department retains the authority to judicially 17 pursue penalties in excess of $10,000 for violations not 18 specifically included in the administrative penalty schedule, 19 or for multiple or multi-day violations alleged to exceed a 20 total of $10,000. The department also retains the authority 21 provided in ss. 403.121, 403.131, and 403.141, to judicially 22 pursue injunctive relief and damages, if a notice of violation 23 seeking the imposition of administrative penalties has not 24 been issued. The department has the authority to enter into a 25 settlement, either before or after initiating a notice of 26 violation, and the settlement may include a penalty amount 27 different from the administrative penalty schedule. Any case 28 filed in state court because it is alleged to exceed a total 29 of $10,000 in penalties may be settled in the court action for 30 less than $10,000. 31 (h) Chapter 120, Florida Statutes, shall apply to any 6 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 administrative action taken by the department or any delegated 2 program pursuing administrative penalties in accordance with 3 this section. 4 (3) Except for violations involving hazardous wastes, 5 asbestos, or underground injection, administrative penalties 6 must be calculated according to the following schedule: 7 (a) For a drinking water contamination violation, the 8 department shall assess a penalty of $2,000 for a Maximum 9 Containment Level (MCL) violation; plus $1,000 if the 10 violation is for a primary inorganic, organic, or radiological 11 Maximum Contaminant Level or it is a fecal coliform bacteria 12 violation; plus $1,000 if the violation occurs at a community 13 water system; and plus $1,000 if any Maximum Contaminant Level 14 is exceeded by more than 100 percent. For failure to obtain a 15 clearance letter prior to placing a drinking water system into 16 service when the system would not have been eligible for 17 clearance - $3,000. 18 (b) For failure to obtain a required wastewater 19 permit, other than a permit required for surface water 20 discharge, the department shall assess a penalty of $1,000. 21 For a domestic or industrial wastewater violation not 22 involving a surfacewater or groundwater quality violation, the 23 department shall assess a penalty of $2,000 for an unpermitted 24 or unauthorized discharge or effluent-limitation exceedance. 25 For an unpermitted or unauthorized discharge or 26 effluent-limitation exceedance that resulted in a surfacewater 27 or groundwater quality violation, the department shall assess 28 a penalty of $5,000. 29 (c) For a dredge and fill or stormwater violation, the 30 department shall assess a penalty of $1,000 for unpermitted or 31 unauthorized dredging or filling or unauthorized construction 7 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 of a stormwater management system against the person or 2 persons responsible for the illegal dredging or filling, or 3 unauthorized construction of a stormwater management system; 4 plus $2,000 if the dredging or filling occurs in an Aquatic 5 Preserve, Outstanding Florida Water, conservation easement, or 6 Class I or Class II surfacewater; plus $1,000 if the area 7 dredged or filled is greater than one-quarter acre but less 8 than one-half acre, and plus $1,000 if the area dredged or 9 filled is greater than one-half acre but less than one acre. 10 The administrative penalty schedule shall not apply to a 11 dredge and fill violation if the area dredged or filled 12 exceeds one acre. The department retains the authority to seek 13 the judicial imposition of civil penalties for all dredge and 14 fill violations involving more than one acre. The department 15 shall assess a penalty of $3,000 for the failure to complete 16 required mitigation, failure to record a required conservation 17 easement , or for a water quality violation resulting from 18 dredging or filling activities, stormwater construction 19 activities or failure of a stormwater treatment facility. For 20 stormwater management systems serving less than five acres, 21 the department shall assess a penalty of $2,000 for the 22 failure to properly or timely construct a stormwater 23 management system. In addition to the penalties authorized in 24 this subsection, the department shall assess a penalty of 25 $5,000 per violation against the contractor or agent of the 26 owner or tenant that conducts unpermitted or unauthorized 27 dredging or filling. 28 (d) For mangrove trimming or alteration violations, 29 the department shall assess a penalty of $5,000 per violation 30 against the contractor or agent of the owner or tenant that 31 conducts mangrove trimming or alteration without a permit as 8 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 required by s. 403.9328. 2 (e) For solid waste violations, the department shall 3 assess a penalty of $2,000 for the unpermitted or unauthorized 4 disposal or storage of solid waste; plus $1,000 if the solid 5 waste is Class I or Class III (excluding yard trash) or if the 6 solid waste is construction and demolition debris in excess of 7 20 cubic yards; plus $1,000 if the waste is disposed of or 8 stored in any natural or artificial body of water or within 9 500 feet of a potable water well; plus $1,000 if the waste 10 contains PCB at a concentration of 50 parts per million or 11 greater; untreated biomedical waste; friable asbestos greater 12 than 1 cubic meter that is not wetted, bagged, and covered, 13 used oil greater than 25 gallons; or 10 or more lead acid 14 batteries. The department shall assess a penalty of $3,000 for 15 failure to properly maintain leachate control; unauthorized 16 burning; failure to have a trained spotter on duty at the 17 working face when accepting waste; failure to provide access 18 control for three consecutive inspections. The department 19 shall assess a penalty of $2,000 for failure to construct or 20 maintain a required stormwater management system. 21 (f) For an air emission violation, the department 22 shall assess a penalty of $1,000 for an unpermitted or 23 unauthorized air emission or an air-emission-permit 24 exceedance, plus $1,000 if the emission results in an air 25 quality violation, plus $3,000 if the emission was from a 26 major source and the source was major for the pollutant in 27 violation; plus $1,000 if the emission was more than 150 28 percent of the allowable level. 29 (g) For storage tank system and petroleum 30 contamination violations, the department shall assess a 31 penalty of $5,000 for failure to empty a damaged storage 9 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 system as necessary to ensure that a release does not occur 2 until repairs to the storage system are completed; when a 3 release has occurred from that storage tank system; failure to 4 timely recover free product; or for failure to conduct 5 remediation or monitoring activities until a no-further-action 6 or site-rehabilitation completion order has been issued. The 7 department shall assess a penalty of $3,000 for failure to 8 timely upgrade a storage tank system. The department shall 9 assess a penalty of $2,000 for failure to conduct or maintain 10 required release detection; failure to timely investigate a 11 suspected release from a storage system; depositing motor fuel 12 into an unregistered storage tank system; failure to timely 13 assess or remediate petroleum contamination; or failure to 14 properly install a storage tank system. The department shall 15 assess a penalty of $1,000 for failure to properly operate, 16 maintain, or close a storage tank system. 17 (3)(a) In addition to any judicial or administrative 18 remedy authorized by this part, the department may assess a 19 noncompliance fee for failure of any owner or operator of a 20 domestic wastewater treatment facility to comply with a permit 21 condition that requires the submittal of monthly operating 22 reports or the reporting of the characteristics of the waste 23 stream or the effects of the facility on surface or ground 24 water. For the first and second violations of the reporting 25 requirements, the fee shall not be assessed until the 26 department has given the owner or operator at least 30 days to 27 comply with the reporting requirement. The time shall not 28 begin until the department has given the owner or operator 29 written notice of the facts alleged to constitute the 30 reporting violation, the specific provision of law, rule, or 31 order alleged to have been violated by the owner or operator, 10 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 the corrective action needed to bring the facility into 2 compliance, and the potential penalties that may be imposed as 3 a result of the owner's or operator's failure to comply with 4 the notice. For subsequent violations, the department does 5 not have to provide 30 days' written notice of the violations 6 prior to assessing a noncompliance fee, except as follows: 7 1. If any additional reporting violations occur prior 8 to the expiration of either of the 30-day notices issued by 9 the department, the department must provide the owner or 10 operator with 30 days' written notice to correct these 11 violations as well. 12 2. Upon the renewal of the permit, the department 13 shall reinstate the 30-day notice requirements provided in 14 this subsection prior to assessing a noncompliance fee during 15 the new permit period. 16 (b) At the time of assessment of a noncompliance fee, 17 the department shall give the owner or operator written notice 18 setting forth the amount assessed, the specific provision of 19 law, rule, or order alleged to be violated, the facts alleged 20 to constitute the violation, the corrective action needed to 21 bring the party into compliance, and the rights available 22 under chapter 120 to challenge the assessment. The assessment 23 shall be final and effective unless an administrative 24 proceeding is requested within 20 days after receipt of the 25 written notice, and shall be enforceable pursuant to s. 26 120.69. Once the assessment has become final and effective, 27 the department may refuse to issue, modify, transfer, or renew 28 a permit to the facility until the fee has been paid. 29 (c) Before assessing a noncompliance fee, the 30 department shall adopt rules to implement the provisions of 31 this subsection. The rules shall establish specific procedures 11 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 and assessment amounts for noncompliance fees authorized by 2 paragraph (a). Noncompliance fees shall be set on a sliding 3 scale based upon the type of violation, the degree of 4 noncompliance, and the potential for harm. Such rules shall 5 also authorize the application of adjustment factors 6 subsequent to the initial assessment to increase or decrease 7 the total amount assessed, such as the good faith efforts or 8 the lack of good faith efforts of the owner or operator to 9 comply with the reporting requirement, the lack of or degree 10 of willfulness or negligence on the part of the owner or 11 operator, the economic benefits associated with the owner's or 12 operator's failure to comply, the owner's or operator's 13 previous history of reporting violations, and the owner's or 14 operator's ability to pay the noncompliance fee. No 15 noncompliance fee shall exceed $250, and total noncompliance 16 fees assessed shall not exceed $1,000 per assessment for all 17 reporting violations attributable to a specific facility 18 during any one month. No noncompliance fee may be assessed 19 unless the department has, within 90 days of the reporting 20 violation, provided the owner or operator written notice of 21 the violation. 22 (d) The department's assessment of a noncompliance fee 23 shall be in lieu of any civil action which may be instituted 24 by the department in a court of competent jurisdiction to 25 impose and recover civil penalties for any violation that 26 resulted in the fee assessment, unless the department 27 initiates a civil action for nonpayment of a fee properly 28 assessed pursuant to this subsection. 29 (e) Fees collected pursuant to this subsection shall 30 be deposited in the Ecosystem Management and Restoration Trust 31 Fund. The department may use a portion of the fund to 12 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 contract for services to help in the collection of the fees 2 assessed pursuant to this subsection. 3 (4) In an administrative proceeding, in addition to 4 the penalties that may be assessed under subsection (3), the 5 department shall assess administrative penalties according to 6 the following schedule: 7 (a) For failure to satisfy financial responsibility 8 requirements or for violation of s. 377.371(1), $5,000. 9 (b) For failure to install, maintain, or use a 10 required pollution control system or device, $4,000. 11 (c) For failure to obtain a required permit prior to 12 construction or modification, $3,000. 13 (d) For failure to conduct required monitoring or 14 testing; failure to conduct required release detection; 15 failure to construct in compliance with a permit, $2,000. 16 (e) For failure to maintain required staff to respond 17 to emergencies; failure to conduct required training; failure 18 to prepare, maintain, or update required contingency plans; 19 failure to adequately respond to emergencies to bring an 20 emergency situation under control; or failure to submit 21 required notification to the department, $1,000. 22 (f) For failure to prepare, submit, maintain, or use 23 required reports or other required documentation, $500. 24 (5) For failure to comply with any other department 25 regulatory statute or rule requirement not otherwise 26 identified in this section, the department may assess a 27 penalty of $500. 28 (6) For each additional day during which a violation 29 occurs, the administrative penalties in subsection (3), 30 subsection (4), and subsection (5) may be assessed per day per 31 violation. 13 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 (7) The history of noncompliance of the violator for 2 any previous violation resulting in an executed consent order, 3 but not including a consent order entered into without a 4 finding of violation, final order or judgment after the 5 effective date of this law involving the imposition of $2,000 6 or more in penalties shall be taken into consideration in the 7 following manner: 8 (a) One previous such violation within 5 years prior 9 to the filing of the notice of violation will result in a 25 10 percent per day increase in the scheduled administrative 11 penalty. 12 (b) Two previous such violations within 5 years prior 13 to the filing of the notice of violation will result in a 50 14 percent per day increase in the scheduled administrative 15 penalty. 16 (c) Three or more previous such violations within 5 17 years prior to the filing of the notice of violation will 18 result in a 100 percent per day increase in the scheduled 19 administrative penalty. 20 (8) The direct economic benefit gained by the violator 21 from the violation shall be added to the scheduled 22 administrative penalty. The total administrative penalty, 23 including any economic benefit added to the scheduled 24 administrative penalty, shall not exceed $10,000. 25 (9) The administrative penalties assessed for any 26 particular violation shall not exceed $5,000 against any one 27 violator, unless the violator has a history of noncompliance, 28 the economic benefit of the violation exceeds $5,000, or there 29 are multi-day violations. The total administrative penalties 30 shall not exceed $10,000 per assessment for all violations 31 attributable to a specific person in the notice of violation. 14 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 (10) The administrative law judge may receive evidence 2 in mitigation. The penalties identified in subsection (3), 3 subsection (4), and subsection (5) may be reduced up to 50 4 percent by the administrative law judge for mitigating 5 circumstances, including good faith efforts to comply prior to 6 or after discovery of the violations by the department. Upon 7 an affirmative finding that the violation was caused by 8 circumstances beyond the reasonable control of the respondent 9 and could not have been prevented by respondent's due 10 diligence, the administrative law judge may further reduce the 11 penalty. 12 (11) Penalties collected pursuant to this section 13 shall be deposited in the Ecosystem Management and Restoration 14 Trust Fund or other trust fund designated by statute and shall 15 be used to fund the restoration of ecosystems, or polluted 16 areas of the state, as defined by the department, to their 17 condition before pollution occurred. The Florida Conflict 18 Resolution Consortium may use a portion of the fund to 19 administer the mediation process provided in paragraph (2)(e) 20 and to contract with private mediators for administrative 21 penalty cases. 22 (12) The purpose of the administrative penalty 23 schedule and process is to provide a more predictable and 24 efficient manner for individuals and businesses to resolve 25 relatively minor environmental disputes. Nothing in subsection 26 (3), subsection (4), subsection (5), subsection (6), or 27 subsection (7) shall be construed as limiting a state court in 28 the assessment of damages. The administrative penalty schedule 29 does not apply to the judicial imposition of civil penalties 30 in state court as provided in this section. 31 Section 3. Section 403.131, Florida Statutes, is 15 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 amended to read: 2 403.131 Injunctive relief, cumulative remedies.-- 3 (1) The department may institute a civil action in a 4 court of competent jurisdiction to seek injunctive relief to 5 enforce compliance with this chapter or any rule, regulation, 6 permit certification, or order; to enjoin any violation 7 specified in s. 403.161(1); and to seek injunctive relief to 8 prevent irreparable injury to the air, waters, and property, 9 including animal, plant, and aquatic life, of the state and to 10 protect human health, safety, and welfare caused or threatened 11 by any violation. 12 (2) All the judicial and administrative remedies to 13 recover damages and penalties in this section and s. 403.121 14 are independent and cumulative except that the judicial and 15 administrative remedies to recover damages are alternative and 16 mutually exclusive. 17 Section 4. Subsection (3) of section 403.727, Florida 18 Statutes, is amended to read: 19 403.727 Violations; defenses, penalties, and 20 remedies.-- 21 (3) Violations of the provisions of this act are 22 punishable as follows: 23 (a) Any person who violates the provisions of this 24 act, the rules or orders of the department, or the conditions 25 of a permit is liable to the state for any damages specified 26 in s. 403.141 and for a civil penalty of not more than $50,000 27 for each day of continued violation, except as otherwise 28 provided herein. The department may revoke any permit issued 29 to the violator. In any action by the department against a 30 small hazardous waste generator for the improper disposal of 31 hazardous wastes, a rebuttable presumption of improper 16 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 disposal shall be created if the generator was notified 2 pursuant to s. 403.7234; the generator shall then have the 3 burden of proving that the disposal was proper. If the 4 generator was not so notified, the burden of proving improper 5 disposal shall be placed upon the department. 6 (b) Any person who knowingly or by exhibiting reckless 7 indifference or gross careless disregard for human health: 8 1. Transports or causes to be transported any 9 hazardous waste, as defined in s. 403.703, to a facility which 10 does not have a permit when such a permit is required under s. 11 403.707 or s. 403.722; 12 2. Disposes of, treats, or stores hazardous waste: 13 a. At any place but a hazardous waste facility which 14 has a current and valid permit pursuant to s. 403.722; 15 b. In knowing violation of any material condition or 16 requirement of such permit if such violation has a substantial 17 likelihood of endangering human health, animal or plant life, 18 or property; or 19 c. In knowing violation of any material condition or 20 requirement of any applicable rule or standard if such 21 violation has a substantial likelihood of endangering human 22 health, animal or plant life, or property; 23 3. Makes any false statement or representation or 24 knowingly omits material information in any hazardous waste 25 application, label, manifest, record, report, permit, or other 26 document required by this act; 27 4. Generates, stores, treats, transports, disposes of, 28 or otherwise handles any hazardous waste and who knowingly 29 destroys, alters, conceals, or fails to file any record, 30 application, manifest, report, or other document required to 31 be maintained or filed for purposes of compliance with this 17 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 act; or 2 5. Transports without a manifest, or causes to be 3 transported without a manifest, any hazardous waste required 4 by rules adopted by the department to be accompanied by a 5 manifest 6 7 is, upon conviction, guilty of a felony of the third degree, 8 punishable for the first such conviction by a fine of not more 9 than $50,000 for each day of violation or imprisonment not to 10 exceed 5 years, or both, and for any subsequent conviction by 11 a fine of not more than $100,000 per day of violation or 12 imprisonment of not more than 10 years, or both. 13 (c)1. As used in this paragraph, "Class II violation" 14 means a violation of this part, or the rules promulgated 15 pursuant to this part, which pertains to small quantity 16 generators as defined by applicable department rules and which 17 does not result in a discharge or serious threat of a 18 discharge of hazardous waste to the environment, or does not 19 involve the failure to ensure that groundwater will be 20 protected or that hazardous waste will be destined for and 21 delivered to permitted facilities. Class II violations shall 22 include, but need not be limited to, the failure to submit 23 manifest exception reports in a timely manner, failure to 24 provide a generator's United States Environmental Protection 25 Agency identification number on the manifest, failure to 26 maintain complete personnel training records, and failure to 27 meet inspection schedule requirements for tanks and containers 28 that hold hazardous waste. 29 2. In addition to any other judicial or administrative 30 remedy authorized by this part, the department may assess a 31 noncompliance fee for any Class II violation by a small 18 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 quantity generator. For the first and second violations, the 2 fee shall not be assessed until the generator has failed to 3 comply after notice of noncompliance and has been given a 4 reasonable time to comply. If the owner or operator fails 5 after three or more notifications to comply with the 6 requirement to correct the Class II violation, the department 7 may assess the fee without waiting for compliance. 8 3. At the time of assessment of a noncompliance fee, 9 the department shall give the small quantity generator written 10 notice setting forth the amount assessed, the specific 11 provision of law, rule, or order alleged to be violated, the 12 facts alleged to constitute the violation, the corrective 13 action needed to bring the party into compliance, and the 14 rights available under chapter 120 to challenge the 15 assessment. The assessment shall be final and effective 16 unless an administrative proceeding is requested within 20 17 days after receipt of the written notice, and shall be 18 enforceable pursuant to s. 120.69. Once the assessment has 19 become final and effective, the department shall refuse to 20 issue, modify, transfer, or renew a permit or issue an 21 identification number to the facility until the fee has been 22 paid. 23 4. Before assessing any noncompliance fee, the 24 department shall adopt rules to implement the provisions of 25 this paragraph, which shall include a description of 26 activities that constitute Class II violations and the setting 27 of appropriate amounts for the noncompliance fees, based upon 28 the type of violation, but not to exceed $250. Total 29 noncompliance fees assessed shall not exceed $1,000 per 30 assessment for all violations attributable to a specific 31 facility during any one month. 19 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 5. The department's assessment of a noncompliance fee 2 shall be in lieu of any civil action that may be instituted by 3 the department in a court of competent jurisdiction to impose 4 and recover civil penalties for any violation that resulted in 5 the fee assessment, unless the department initiates a civil 6 action for nonpayment of a fee properly assessed pursuant to 7 this paragraph. 8 6. Noncompliance fees collected pursuant to this 9 paragraph shall be deposited in the Ecosystem Management and 10 Restoration Trust Fund. The department may use a portion of 11 the fund to contract for services to help in the collection of 12 fees assessed pursuant to this paragraph. 13 Section 5. Subsections (5) and (6) of section 403.860, 14 Florida Statutes, are amended to read: 15 403.860 Penalties and remedies.-- 16 (5) In addition to any judicial or administrative 17 remedy authorized by this part, the department or a county 18 health department that has received approval by the department 19 pursuant to s. 403.862(1)(c) shall may assess administrative 20 penalties for violations of this section in accordance with s. 21 403.121 a noncompliance fee for failure of any supplier of 22 water of a public water system to comply with department 23 requirements for the reporting, in the manner and time 24 provided by department rule, of test results for 25 microbiological, inorganic, or organic contaminants; or 26 turbidity, radionucleides, or secondary standards. 27 (a) For the first and second violations of the 28 microbiological reporting requirements, and for the first 29 violation of other reporting requirements, the fee shall not 30 be assessed until the department has given the supplier at 31 least 30 days to comply with the reporting requirement. The 20 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 time shall not begin until the department has given the 2 supplier written notice of the facts alleged to constitute the 3 reporting violation, the specific provision of law, rule, or 4 order alleged to have been violated by the owner or operator, 5 the corrective action needed to bring the facility into 6 compliance, and the potential penalties that may be imposed as 7 a result of the supplier's failure to comply with the notice. 8 For subsequent violations of the microbiological reporting 9 requirements, the department does not have to provide 30-day 10 written notice of the violations prior to assessing a 11 noncompliance fee, provided, however, that if any additional 12 reporting violations occur prior to the expiration of either 13 30-day notice issued by the department, the department must 14 provide the supplier with a 30-day written notice to correct 15 those violations as well. Upon expiration of 36 months, the 16 department shall reinstate the 30-day notice requirements 17 provided in this subsection prior to assessing a noncompliance 18 fee. 19 (b) At the time of assessment of a noncompliance fee, 20 the department shall give the supplier written notice setting 21 forth the amount assessed, the specific provision of law, 22 rule, or order alleged to be violated, the facts alleged to 23 constitute the violation, the corrective action needed to 24 bring the party into compliance, and the rights available 25 under chapter 120 to challenge the assessment. The assessment 26 shall be final and effective unless an administrative 27 proceeding is requested within 20 days after receipt of the 28 written notice, and shall be enforceable pursuant to s. 29 120.69. 30 (c) Before assessing a noncompliance fee, the 31 department shall adopt rules to implement the provisions of 21 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 this subsection. The rules shall establish specific procedures 2 and assessment amounts for noncompliance fees authorized by 3 paragraph (a). Noncompliance fees shall be set on a sliding 4 scale based upon the type of violation, the degree of 5 noncompliance, and the potential for harm. Such rules shall 6 also authorize the application of adjustment factors 7 subsequent to initial assessment to increase or decrease the 8 total amount assessed, such as the good faith efforts or the 9 lack of good faith efforts of the supplier to comply with the 10 reporting requirements, the lack of or degree of willfulness 11 or negligence on the part of the supplier, the economic 12 benefits associated with the supplier's failure to comply with 13 the reporting violation, the supplier's previous history of 14 reporting violations, and the supplier's ability to pay the 15 noncompliance fee. 16 (d) For microbiological reporting requirements, no 17 noncompliance fee shall exceed $250, and total noncompliance 18 fees assessed shall not exceed $1,000 per assessment for all 19 reporting violations attributable to a specific facility 20 during any one month. 21 (e) For violations of reporting requirements other 22 than microbiological, the fee shall be no greater than $50 per 23 day for each day of violation, and the total amount assessed 24 shall not exceed $2,000. 25 (f) The department's assessment of a noncompliance fee 26 shall be in lieu of any civil action which may be instituted 27 by the department in a court of competent jurisdiction to 28 impose and recover civil penalties for any violation that 29 resulted in the fee assessment, unless the department 30 initiates a civil action for nonpayment of a fee properly 31 assessed pursuant to this subsection. 22 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 (g) No noncompliance fee may be assessed unless the 2 department has, within 90 days of the reporting violation, 3 provided the supplier written notice of the violation. 4 (6) The department is authorized to assess 5 administrative penalties for failure to comply with the 6 requirements of the Florida Safe Drinking Water Act. 7 (a) Prior to the assessment of an administrative 8 penalty, the department shall provide the public water system 9 a reasonable amount of time to complete the corrective action 10 necessary to bring the system back into compliance. 11 (b)1. At the time of assessment of the administrative 12 penalty, the department shall give the public water system 13 notice setting forth the amount assessed, the specific 14 provision of law, rule, or order alleged to be violated, the 15 facts alleged to constitute the violation, the corrective 16 action needed to bring the party into compliance, and the 17 rights available under chapter 120 to challenge the 18 assessment. The assessment shall be final and effective, 19 unless an administrative hearing is requested within 20 days 20 after receipt of the written notice, and shall be enforceable 21 pursuant to s. 120.69. 22 2. The department shall adopt rules to implement the 23 provisions of this subsection. The rules shall establish 24 specific procedures for implementing the penalties and shall 25 identify assessment amounts. The rules shall authorize the 26 application of adjustment factors for the purpose of 27 increasing or decreasing the total amount assessed subsequent 28 to initial assessment. Such factors may include the lack or 29 degree of good faith to comply with the requirements, the lack 30 or degree of willfulness or negligence on the part of the 31 owner, the compliance history of the public water system, the 23 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 economic benefit derived by the failure to comply with the 2 requirements, and the ability to pay. 3 (c) The amount of the penalties assessed shall be as 4 follows: 5 1. In the case of a public water system serving a 6 population of more than 10,000, the penalty shall be not less 7 than $1,000 per day per violation. 8 2. In the case of any other public water system, the 9 penalty shall be adequate to ensure compliance. 10 11 However, the total amount of the penalty assessed on any 12 public water system may not exceed $10,000 per violation. 13 Section 6. Two years after the effective date of this 14 act, the Department of Environmental Protection shall submit a 15 report to the Legislature describing the number of notices of 16 violation issued by the department seeking the imposition of 17 administrative penalties, the amount of administrative 18 penalties obtained by the department, and the efficiencies 19 gained from the provisions of this act. 20 Section 7. This act shall take effect upon becoming a 21 law. 22 23 24 ================ T I T L E A M E N D M E N T =============== 25 And the title is amended as follows: 26 On page 1, line 1 through page 4 line 2 27 remove from the title of the bill: all of said lines 28 29 and insert in lieu thereof: 30 An act relating to environmental control; 31 amending s. 369.25, F.S.; granting the 24 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085
HOUSE AMENDMENT Bill No. HB 1635 Barcode 374085 Amendment No. ___ (for drafter's use only) 1 Department of Environmental Protection 2 additional enforcement powers for aquatic plant 3 control; amending ss. 403.121, 403.131, 4 403.727, 403.860, F.S.; revising judicial and 5 administrative remedies for violations of 6 environmental laws; providing for 7 administrative penalties; requiring the 8 Department of Environmental Protection to 9 report to the Legislature; providing an 10 effective date. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 25 File original & 9 copies 04/06/01 hep0001 11:27 am 01635-nrep-374085