HOUSE AMENDMENT
                                                  Bill No. HB 1635
    Amendment No. 01 (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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 5                                           ORIGINAL STAMP BELOW
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11  The Committee on Fiscal Policy & Resources offered the
12  following:
13  
14         Substitute Amendment for Amendment (374085) (with title
15  amendment) 
16  Remove from the bill:  Everything after the enacting clause
17  
18  and insert in lieu thereof:  
19         Section 1.  Paragraph (k) is added to subsection (3) of
20  section 369.25, Florida Statutes, to read:
21         369.25  Aquatic plants; definitions; permits; powers of
22  department; penalties.--
23         (3)  The department has the following powers:
24         (k)  To enforce this chapter in the same manner and to
25  the same extent as provided in ss. 403.121, 403.131, 403.141,
26  and 403.161.
27         Section 2.  Section 403.121, Florida Statutes, is
28  amended to read:
29         403.121  Enforcement; procedure; remedies.--The
30  department shall have the following judicial and
31  administrative remedies available to it for violations of this
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    File original & 9 copies    04/19/01                          
    hft0006                     06:17 pm         01635-fpr -471999

HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 chapter, as specified in s. 403.161(1). 2 (1) Judicial remedies: 3 (a) The department may institute a civil action in a 4 court of competent jurisdiction to establish liability and to 5 recover damages for any injury to the air, waters, or 6 property, including animal, plant, and aquatic life, of the 7 state caused by any violation. 8 (b) The department may institute a civil action in a 9 court of competent jurisdiction to impose and to recover a 10 civil penalty for each violation in an amount of not more than 11 $10,000 per offense. However, the court may receive evidence 12 in mitigation. Each day during any portion of which such 13 violation occurs constitutes a separate offense. 14 (c) Except as provided in paragraph (2)(c), it shall 15 not be a defense to, or ground for dismissal of, these 16 judicial remedies for damages and civil penalties that the 17 department has failed to exhaust its administrative remedies, 18 has failed to serve a notice of violation, or has failed to 19 hold an administrative hearing prior to the institution of a 20 civil action. 21 (2) Administrative remedies: 22 (a) The department may institute an administrative 23 proceeding to establish liability and to recover damages for 24 any injury to the air, waters, or property, including animal, 25 plant, or aquatic life, of the state caused by any violation. 26 The department may order that the violator pay a specified sum 27 as damages to the state. Judgment for the amount of damages 28 determined by the department may be entered in any court 29 having jurisdiction thereof and may be enforced as any other 30 judgment. 31 (b) If the department has reason to believe a 2 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 violation has occurred, it may institute an administrative 2 proceeding to order the prevention, abatement, or control of 3 the conditions creating the violation or other appropriate 4 corrective action. Except for violations involving hazardous 5 wastes, asbestos, or underground injection, the department 6 shall proceed administratively in all cases in which the 7 department seeks administrative penalties that do not exceed 8 $10,000 per assessment as calculated in accordance with 9 subsections (3), (4), (5), (6), and (7). The department shall 10 not impose administrative penalties in excess of $10,000 in a 11 notice of violation. The department shall not have more than 12 one notice of violation seeking administrative penalties 13 pending against the same party at the same time unless the 14 violations occurred at a different site or the violations were 15 discovered by the department subsequent to the filing of a 16 previous notice of violation. 17 (c) An administrative proceeding shall be instituted 18 by the department's serving of a written notice of violation 19 upon the alleged violator by certified mail. If the department 20 is unable to effect service by certified mail, the notice of 21 violation may be hand-delivered or personally served in 22 accordance with chapter 48. The notice shall specify the 23 provision of the law, rule, regulation, permit, certification, 24 or order of the department alleged to be violated and the 25 facts alleged to constitute a violation thereof. An order for 26 corrective action, penalty assessment, or damages may be 27 included with the notice. When the department is seeking to 28 impose an administrative penalty for any violation by issuing 29 a notice of violation, any corrective action needed to correct 30 the violation or damages caused by the violation must be 31 pursued in the notice of violation or they are waived. 3 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 However, no order shall become effective until after service 2 and an administrative hearing, if requested within 20 days 3 after service. Failure to request an administrative hearing 4 within this time period shall constitute a waiver thereof, 5 unless the respondent files a written notice with the 6 department within this time period opting out of the 7 administrative process initiated by the department to impose 8 administrative penalties. Any respondent choosing to opt out 9 of the administrative process initiated by the department in 10 an action that seeks the imposition of administrative 11 penalties must file a written notice with the department 12 within 20 days after service of the notice of violation opting 13 out of the administrative process. A respondent's decision to 14 opt out of the administrative process does not preclude the 15 department from initiating a state court action seeking 16 injunctive relief, damages, and the judicial imposition of 17 civil penalties. 18 (d) If a person timely files a petition challenging a 19 notice of violation, that person will thereafter be referred 20 to as the respondent. The hearing requested by the respondent 21 shall be held within 180 days after the department has 22 referred the initial petition to the Division of 23 Administrative Hearings unless the parties agree to a later 24 date. The department has the burden of proving with the 25 preponderance of the evidence that the respondent is 26 responsible for the violation. No administrative penalties 27 should be imposed unless the department satisfies that burden. 28 Following the close of the hearing, the administrative law 29 judge shall issue a final order on all matters, including the 30 imposition of an administrative penalty. When the department 31 seeks to enforce that portion of a final order imposing 4 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 administrative penalties pursuant to s. 120.69, the respondent 2 shall not assert as a defense the inappropriateness of the 3 administrative remedy. The department retains its final-order 4 authority in all administrative actions that do not request 5 the imposition of administrative penalties. 6 (e) After filing a petition requesting a formal 7 hearing in response to a notice of violation in which the 8 department imposes an administrative penalty, a respondent may 9 request that a private mediator be appointed to mediate the 10 dispute by contacting the Florida Conflict Resolution 11 Consortium within 10 days after receipt of the Initial Order 12 from the administrative law judge. The Florida Conflict 13 Resolution Consortium shall pay all of the costs of the 14 mediator and for up to 8 hours of the mediator's time per case 15 at $150 per hour. Upon notice from the respondent, the Florida 16 Conflict Resolution Consortium shall provide to the respondent 17 a panel of possible mediators from the area in which the 18 hearing on the petition would be heard. The respondent shall 19 select the mediator and notify the Florida Conflict Resolution 20 Consortium of the selection within 15 days of receipt of the 21 proposed panel of mediators. The Florida Conflict Resolution 22 Consortium shall provide all of the administrative support for 23 the mediation process. The mediation must be completed at 24 least 15 days before the final-hearing date set by the 25 administrative law judge. 26 (f) In any administrative proceeding brought by the 27 department, the prevailing party shall recover all costs as 28 provided in ss. 57.041 and 57.071. The costs must be included 29 in the final order. The respondent is the prevailing party 30 when an order is entered awarding no penalties to the 31 department and such order has not been reversed on appeal or 5 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 the time for seeking judicial review has expired. The 2 respondent shall be entitled to an award of attorney's fees if 3 the administrative law judge determines that the notice of 4 violation issued by the department seeking the imposition of 5 administrative penalties was not substantially justified as 6 defined in s. 57.111(3)(e). No award of attorney's fees as 7 provided by this subsection shall exceed $15,000. 8 (g)(d) Nothing herein shall be construed as preventing 9 any other legal or administrative action in accordance with 10 law. Nothing in this subsection shall limit the department's 11 authority provided in ss. 403.121, 403.131, and 403.141, to 12 judicially pursue injunctive relief. When the department 13 exercises its authority to judicially pursue injunctive 14 relief, penalties in any amount up to the statutory maximum 15 sought by the department must be pursued as part of the state 16 court action and not by initiating a separate administrative 17 proceeding. The department retains the authority to judicially 18 pursue penalties in excess of $10,000 for violations not 19 specifically included in the administrative penalty schedule, 20 or for multiple or multi-day violations alleged to exceed a 21 total of $10,000. The department also retains the authority 22 provided in ss. 403.121, 403.131, and 403.141, to judicially 23 pursue injunctive relief and damages, if a notice of violation 24 seeking the imposition of administrative penalties has not 25 been issued. The department has the authority to enter into a 26 settlement, either before or after initiating a notice of 27 violation, and the settlement may include a penalty amount 28 different from the administrative penalty schedule. Any case 29 filed in state court because it is alleged to exceed a total 30 of $10,000 in penalties may be settled in the court action for 31 less than $10,000. 6 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 (h) Chapter 120 shall apply to any administrative 2 action taken by the department or any delegated program 3 pursuing administrative penalties in accordance with this 4 section. 5 (3) Except for violations involving hazardous wastes, 6 asbestos, or underground injection, administrative penalties 7 must be calculated according to the following schedule: 8 (a) For a drinking water contamination violation, the 9 department shall assess a penalty of $2,000 for a Maximum 10 Containment Level (MCL) violation; plus $1,000 if the 11 violation is for a primary inorganic, organic, or radiological 12 Maximum Contaminant Level or it is a fecal coliform bacteria 13 violation; plus $1,000 if the violation occurs at a community 14 water system; and plus $1,000 if any Maximum Contaminant Level 15 is exceeded by more than 100 percent. For failure to obtain a 16 clearance letter prior to placing a drinking water system into 17 service when the system would not have been eligible for 18 clearance, the department shall assess a penalty of $3,000. 19 (b) For failure to obtain a required wastewater 20 permit, other than a permit required for surface water 21 discharge, the department shall assess a penalty of $1,000. 22 For a domestic or industrial wastewater violation not 23 involving a surfacewater or groundwater quality violation, the 24 department shall assess a penalty of $2,000 for an unpermitted 25 or unauthorized discharge or effluent-limitation exceedance. 26 For an unpermitted or unauthorized discharge or 27 effluent-limitation exceedance that resulted in a surfacewater 28 or groundwater quality violation, the department shall assess 29 a penalty of $5,000. 30 (c) For a dredge and fill or stormwater violation, the 31 department shall assess a penalty of $1,000 for unpermitted or 7 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 unauthorized dredging or filling or unauthorized construction 2 of a stormwater management system against the person or 3 persons responsible for the illegal dredging or filling, or 4 unauthorized construction of a stormwater management system 5 plus $2,000 if the dredging or filling occurs in an Aquatic 6 Preserve, Outstanding Florida Water, conservation easement, or 7 Class I or Class II surfacewater, plus $1,000 if the area 8 dredged or filled is greater than one-quarter acre but less 9 than or equal to one-half acre, and plus $1,000 if the area 10 dredged or filled is greater than one-half acre but less than 11 or equal to one acre. The administrative penalty schedule 12 shall not apply to a dredge and fill violation if the area 13 dredged or filled exceeds one acre. The department retains the 14 authority to seek the judicial imposition of civil penalties 15 for all dredge and fill violations involving more than one 16 acre. The department shall assess a penalty of $3,000 for the 17 failure to complete required mitigation, failure to record a 18 required conservation easement, or for a water quality 19 violation resulting from dredging or filling activities, 20 stormwater construction activities or failure of a stormwater 21 treatment facility. For stormwater management systems serving 22 less than five acres, the department shall assess a penalty of 23 $2,000 for the failure to properly or timely construct a 24 stormwater management system. In addition to the penalties 25 authorized in this subsection, the department shall assess a 26 penalty of $5,000 per violation against the contractor or 27 agent of the owner or tenant that conducts unpermitted or 28 unauthorized dredging or filling. 29 (d) For mangrove trimming or alteration violations, 30 the department shall assess a penalty of $5,000 per violation 31 against the contractor or agent of the owner or tenant that 8 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 conducts mangrove trimming or alteration without a permit as 2 required by s. 403.9328. 3 (e) For solid waste violations, the department shall 4 assess a penalty of $2,000 for the unpermitted or unauthorized 5 disposal or storage of solid waste; plus $1,000 if the solid 6 waste is Class I or Class III (excluding yard trash) or if the 7 solid waste is construction and demolition debris in excess of 8 20 cubic yards, plus $1,000 if the waste is disposed of or 9 stored in any natural or artificial body of water or within 10 500 feet of a potable water well, plus $1,000 if the waste 11 contains PCB at a concentration of 50 parts per million or 12 greater; untreated biomedical waste; friable asbestos greater 13 than 1 cubic meter which is not wetted, bagged, and covered; 14 used oil greater than 25 gallons; or 10 or more lead acid 15 batteries. The department shall assess a penalty of $3,000 for 16 failure to properly maintain leachate control; unauthorized 17 burning; failure to have a trained spotter on duty at the 18 working face when accepting waste; failure to provide access 19 control for three consecutive inspections. The department 20 shall assess a penalty of $2,000 for failure to construct or 21 maintain a required stormwater management system. 22 (f) For an air emission violation, the department 23 shall assess a penalty of $1,000 for an unpermitted or 24 unauthorized air emission or an air-emission-permit 25 exceedance, plus $1,000 if the emission results in an air 26 quality violation, plus $3,000 if the emission was from a 27 major source and the source was major for the pollutant in 28 violation; plus $1,000 if the emission was more than 150 29 percent of the allowable level. 30 (g) For storage tank system and petroleum 31 contamination violations, the department shall assess a 9 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 penalty of $5,000 for failure to empty a damaged storage 2 system as necessary to ensure that a release does not occur 3 until repairs to the storage system are completed; when a 4 release has occurred from that storage tank system; for 5 failure to timely recover free product; or for failure to 6 conduct remediation or monitoring activities until a 7 no-further-action or site-rehabilitation completion order has 8 been issued. The department shall assess a penalty of $3,000 9 for failure to timely upgrade a storage tank system. The 10 department shall assess a penalty of $2,000 for failure to 11 conduct or maintain required release detection; failure to 12 timely investigate a suspected release from a storage system; 13 depositing motor fuel into an unregistered storage tank 14 system; failure to timely assess or remediate petroleum 15 contamination; or failure to properly install a storage tank 16 system. The department shall assess a penalty of $1,000 for 17 failure to properly operate, maintain, or close a storage tank 18 system. 19 (3)(a) In addition to any judicial or administrative 20 remedy authorized by this part, the department may assess a 21 noncompliance fee for failure of any owner or operator of a 22 domestic wastewater treatment facility to comply with a permit 23 condition that requires the submittal of monthly operating 24 reports or the reporting of the characteristics of the waste 25 stream or the effects of the facility on surface or ground 26 water. For the first and second violations of the reporting 27 requirements, the fee shall not be assessed until the 28 department has given the owner or operator at least 30 days to 29 comply with the reporting requirement. The time shall not 30 begin until the department has given the owner or operator 31 written notice of the facts alleged to constitute the 10 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 reporting violation, the specific provision of law, rule, or 2 order alleged to have been violated by the owner or operator, 3 the corrective action needed to bring the facility into 4 compliance, and the potential penalties that may be imposed as 5 a result of the owner's or operator's failure to comply with 6 the notice. For subsequent violations, the department does 7 not have to provide 30 days' written notice of the violations 8 prior to assessing a noncompliance fee, except as follows: 9 1. If any additional reporting violations occur prior 10 to the expiration of either of the 30-day notices issued by 11 the department, the department must provide the owner or 12 operator with 30 days' written notice to correct these 13 violations as well. 14 2. Upon the renewal of the permit, the department 15 shall reinstate the 30-day notice requirements provided in 16 this subsection prior to assessing a noncompliance fee during 17 the new permit period. 18 (b) At the time of assessment of a noncompliance fee, 19 the department shall give the owner or operator written notice 20 setting forth the amount assessed, the specific provision of 21 law, rule, or order alleged to be violated, the facts alleged 22 to constitute the violation, the corrective action needed to 23 bring the party into compliance, and the rights available 24 under chapter 120 to challenge the assessment. The assessment 25 shall be final and effective unless an administrative 26 proceeding is requested within 20 days after receipt of the 27 written notice, and shall be enforceable pursuant to s. 28 120.69. Once the assessment has become final and effective, 29 the department may refuse to issue, modify, transfer, or renew 30 a permit to the facility until the fee has been paid. 31 (c) Before assessing a noncompliance fee, the 11 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 department shall adopt rules to implement the provisions of 2 this subsection. The rules shall establish specific procedures 3 and assessment amounts for noncompliance fees authorized by 4 paragraph (a). Noncompliance fees shall be set on a sliding 5 scale based upon the type of violation, the degree of 6 noncompliance, and the potential for harm. Such rules shall 7 also authorize the application of adjustment factors 8 subsequent to the initial assessment to increase or decrease 9 the total amount assessed, such as the good faith efforts or 10 the lack of good faith efforts of the owner or operator to 11 comply with the reporting requirement, the lack of or degree 12 of willfulness or negligence on the part of the owner or 13 operator, the economic benefits associated with the owner's or 14 operator's failure to comply, the owner's or operator's 15 previous history of reporting violations, and the owner's or 16 operator's ability to pay the noncompliance fee. 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. No noncompliance fee may be assessed 21 unless the department has, within 90 days of the reporting 22 violation, provided the owner or operator written notice of 23 the violation. 24 (d) The department's assessment of a noncompliance fee 25 shall be in lieu of any civil action which may be instituted 26 by the department in a court of competent jurisdiction to 27 impose and recover civil penalties for any violation that 28 resulted in the fee assessment, unless the department 29 initiates a civil action for nonpayment of a fee properly 30 assessed pursuant to this subsection. 31 (e) Fees collected pursuant to this subsection shall 12 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 be deposited in the Ecosystem Management and Restoration Trust 2 Fund. The department may use a portion of the fund to 3 contract for services to help in the collection of the fees 4 assessed pursuant to this subsection. 5 (4) In an administrative proceeding, in addition to 6 the penalties that may be assessed under subsection (3), the 7 department shall assess administrative penalties according to 8 the following schedule: 9 (a) For failure to satisfy financial responsibility 10 requirements or for violation of s. 377.371(1), $5,000. 11 (b) For failure to install, maintain, or use a 12 required pollution control system or device, $4,000. 13 (c) For failure to obtain a required permit before 14 construction or modification, $3,000. 15 (d) For failure to conduct required monitoring or 16 testing; failure to conduct required release detection; or 17 failure to construct in compliance with a permit, $2,000. 18 (e) For failure to maintain required staff to respond 19 to emergencies; failure to conduct required training; failure 20 to prepare, maintain, or update required contingency plans; 21 failure to adequately respond to emergencies to bring an 22 emergency situation under control; or failure to submit 23 required notification to the department, $1,000. 24 (f) For failure to prepare, submit, maintain, or use 25 required reports or other required documentation, $500. 26 (5) For failure to comply with any other departmental 27 regulatory statute or rule requirement not otherwise 28 identified in this section, the department may assess a 29 penalty of $500. 30 (6) For each additional day during which a violation 31 occurs, the administrative penalties in subsection (3), 13 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 subsection (4), and subsection (5) may be assessed per day per 2 violation. 3 (7) The history of noncompliance of the violator for 4 any previous violation resulting in an executed consent order, 5 but not including a consent order entered into without a 6 finding of violation, or resulting in a final order or 7 judgment after the effective date of this law involving the 8 imposition of $2,000 or more in penalties shall be taken into 9 consideration in the following manner: 10 (a) One previous such violation within 5 years prior 11 to the filing of the notice of violation will result in a 25 12 percent per day increase in the scheduled administrative 13 penalty. 14 (b) Two previous such violations within 5 years prior 15 to the filing of the notice of violation will result in a 50 16 percent per day increase in the scheduled administrative 17 penalty. 18 (c) Three or more previous such violations within 5 19 years prior to the filing of the notice of violation will 20 result in a 100 percent per day increase in the scheduled 21 administrative penalty. 22 (8) The direct economic benefit gained by the violator 23 from the violation, where consideration of economic benefit is 24 provided by Florida law or required by federal law as part of 25 a federally delegated or approved program, shall be added to 26 the scheduled administrative penalty. The total administrative 27 penalty, including any economic benefit added to the scheduled 28 administrative penalty, shall not exceed $10,000. 29 (9) The administrative penalties assessed for any 30 particular violation as described in subsection (8) shall not 31 exceed $5,000 against any one violator, unless the violator 14 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 has a history of noncompliance, the economic benefit of the 2 violation exceeds $5,000, or there are multi-day violations. 3 The total administrative penalties shall not exceed $10,000 4 per assessment for all violations attributable to a specific 5 person in the notice of violation. 6 (10) The administrative law judge may receive evidence 7 in mitigation. The penalties identified in subsection (3), 8 subsection (4), and subsection (5) may be reduced up to 50 9 percent by the administrative law judge for mitigating 10 circumstances, including good faith efforts to comply prior to 11 or after discovery of the violations by the department. Upon 12 an affirmative finding that the violation was caused by 13 circumstances beyond the reasonable control of the respondent 14 and could not have been prevented by respondent's due 15 diligence, the administrative law judge may further reduce the 16 penalty. 17 (11) Penalties collected pursuant to this section 18 shall be deposited in the Ecosystem Management and Restoration 19 Trust Fund or other trust fund designated by statute and shall 20 be used to fund the restoration of ecosystems, or polluted 21 areas of the state, as defined by the department, to their 22 condition before pollution occurred. The Florida Conflict 23 Resolution Consortium may use a portion of the fund to 24 administer the mediation process provided in paragraph (2)(e) 25 and to contract with private mediators for administrative 26 penalty cases. 27 (12) The purpose of the administrative penalty 28 schedule and process is to provide a more predictable and 29 efficient manner for individuals and businesses to resolve 30 relatively minor environmental disputes. Subsection (3), 31 subsection (4), subsection (5), subsection (6), or subsection 15 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 (7) shall not be construed as limiting a state court in the 2 assessment of damages. The administrative penalty schedule 3 does not apply to the judicial imposition of civil penalties 4 in state court as provided in this section. 5 Section 3. Section 403.131, Florida Statutes, is 6 amended to read: 7 403.131 Injunctive relief, cumulative remedies.-- 8 (1) The department may institute a civil action in a 9 court of competent jurisdiction to seek injunctive relief to 10 enforce compliance with this chapter or any rule, regulation, 11 permit certification, or order; to enjoin any violation 12 specified in s. 403.161(1); and to seek injunctive relief to 13 prevent irreparable injury to the air, waters, and property, 14 including animal, plant, and aquatic life, of the state and to 15 protect human health, safety, and welfare caused or threatened 16 by any violation. 17 (2) All the judicial and administrative remedies to 18 recover damages and penalties in this section and s. 403.121 19 are independent and cumulative except that the judicial and 20 administrative remedies to recover damages are alternative and 21 mutually exclusive. 22 Section 4. Subsection (3) of section 403.727, Florida 23 Statutes, is amended to read: 24 403.727 Violations; defenses, penalties, and 25 remedies.-- 26 (3) Violations of the provisions of this act are 27 punishable as follows: 28 (a) Any person who violates the provisions of this 29 act, the rules or orders of the department, or the conditions 30 of a permit is liable to the state for any damages specified 31 in s. 403.141 and for a civil penalty of not more than $50,000 16 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 for each day of continued violation, except as otherwise 2 provided herein. The department may revoke any permit issued 3 to the violator. In any action by the department against a 4 small hazardous waste generator for the improper disposal of 5 hazardous wastes, a rebuttable presumption of improper 6 disposal shall be created if the generator was notified 7 pursuant to s. 403.7234; the generator shall then have the 8 burden of proving that the disposal was proper. If the 9 generator was not so notified, the burden of proving improper 10 disposal shall be placed upon the department. 11 (b) Any person who knowingly or by exhibiting reckless 12 indifference or gross careless disregard for human health: 13 1. Transports or causes to be transported any 14 hazardous waste, as defined in s. 403.703, to a facility which 15 does not have a permit when such a permit is required under s. 16 403.707 or s. 403.722; 17 2. Disposes of, treats, or stores hazardous waste: 18 a. At any place but a hazardous waste facility which 19 has a current and valid permit pursuant to s. 403.722; 20 b. In knowing violation of any material condition or 21 requirement of such permit if such violation has a substantial 22 likelihood of endangering human health, animal or plant life, 23 or property; or 24 c. In knowing violation of any material condition or 25 requirement of any applicable rule or standard if such 26 violation has a substantial likelihood of endangering human 27 health, animal or plant life, or property; 28 3. Makes any false statement or representation or 29 knowingly omits material information in any hazardous waste 30 application, label, manifest, record, report, permit, or other 31 document required by this act; 17 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 4. Generates, stores, treats, transports, disposes of, 2 or otherwise handles any hazardous waste and who knowingly 3 destroys, alters, conceals, or fails to file any record, 4 application, manifest, report, or other document required to 5 be maintained or filed for purposes of compliance with this 6 act; or 7 5. Transports without a manifest, or causes to be 8 transported without a manifest, any hazardous waste required 9 by rules adopted by the department to be accompanied by a 10 manifest 11 12 is, upon conviction, guilty of a felony of the third degree, 13 punishable for the first such conviction by a fine of not more 14 than $50,000 for each day of violation or imprisonment not to 15 exceed 5 years, or both, and for any subsequent conviction by 16 a fine of not more than $100,000 per day of violation or 17 imprisonment of not more than 10 years, or both. 18 (c)1. As used in this paragraph, "Class II violation" 19 means a violation of this part, or the rules promulgated 20 pursuant to this part, which pertains to small quantity 21 generators as defined by applicable department rules and which 22 does not result in a discharge or serious threat of a 23 discharge of hazardous waste to the environment, or does not 24 involve the failure to ensure that groundwater will be 25 protected or that hazardous waste will be destined for and 26 delivered to permitted facilities. Class II violations shall 27 include, but need not be limited to, the failure to submit 28 manifest exception reports in a timely manner, failure to 29 provide a generator's United States Environmental Protection 30 Agency identification number on the manifest, failure to 31 maintain complete personnel training records, and failure to 18 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 meet inspection schedule requirements for tanks and containers 2 that hold hazardous waste. 3 2. In addition to any other judicial or administrative 4 remedy authorized by this part, the department may assess a 5 noncompliance fee for any Class II violation by a small 6 quantity generator. For the first and second violations, the 7 fee shall not be assessed until the generator has failed to 8 comply after notice of noncompliance and has been given a 9 reasonable time to comply. If the owner or operator fails 10 after three or more notifications to comply with the 11 requirement to correct the Class II violation, the department 12 may assess the fee without waiting for compliance. 13 3. At the time of assessment of a noncompliance fee, 14 the department shall give the small quantity generator written 15 notice setting forth the amount assessed, the specific 16 provision of law, rule, or order alleged to be violated, the 17 facts alleged to constitute the violation, the corrective 18 action needed to bring the party into compliance, and the 19 rights available under chapter 120 to challenge the 20 assessment. The assessment shall be final and effective 21 unless an administrative proceeding is requested within 20 22 days after receipt of the written notice, and shall be 23 enforceable pursuant to s. 120.69. Once the assessment has 24 become final and effective, the department shall refuse to 25 issue, modify, transfer, or renew a permit or issue an 26 identification number to the facility until the fee has been 27 paid. 28 4. Before assessing any noncompliance fee, the 29 department shall adopt rules to implement the provisions of 30 this paragraph, which shall include a description of 31 activities that constitute Class II violations and the setting 19 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 of appropriate amounts for the noncompliance fees, based upon 2 the type of violation, but not to exceed $250. Total 3 noncompliance fees assessed shall not exceed $1,000 per 4 assessment for all violations attributable to a specific 5 facility during any one month. 6 5. The department's assessment of a noncompliance fee 7 shall be in lieu of any civil action that may be instituted by 8 the department in a court of competent jurisdiction to impose 9 and recover civil penalties for any violation that resulted in 10 the fee assessment, unless the department initiates a civil 11 action for nonpayment of a fee properly assessed pursuant to 12 this paragraph. 13 6. Noncompliance fees collected pursuant to this 14 paragraph shall be deposited in the Ecosystem Management and 15 Restoration Trust Fund. The department may use a portion of 16 the fund to contract for services to help in the collection of 17 fees assessed pursuant to this paragraph. 18 Section 5. Subsections (5) and (6) of section 403.860, 19 Florida Statutes, are amended to read: 20 403.860 Penalties and remedies.-- 21 (5) In addition to any judicial or administrative 22 remedy authorized by this part, the department or a county 23 health department that has received approval by the department 24 pursuant to s. 403.862(1)(c) shall may assess administrative 25 penalties for violations of this section in accordance with s. 26 403.121 a noncompliance fee for failure of any supplier of 27 water of a public water system to comply with department 28 requirements for the reporting, in the manner and time 29 provided by department rule, of test results for 30 microbiological, inorganic, or organic contaminants; or 31 turbidity, radionucleides, or secondary standards. 20 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 (a) For the first and second violations of the 2 microbiological reporting requirements, and for the first 3 violation of other reporting requirements, the fee shall not 4 be assessed until the department has given the supplier at 5 least 30 days to comply with the reporting requirement. The 6 time shall not begin until the department has given the 7 supplier written notice of the facts alleged to constitute the 8 reporting violation, the specific provision of law, rule, or 9 order alleged to have been violated by the owner or operator, 10 the corrective action needed to bring the facility into 11 compliance, and the potential penalties that may be imposed as 12 a result of the supplier's failure to comply with the notice. 13 For subsequent violations of the microbiological reporting 14 requirements, the department does not have to provide 30-day 15 written notice of the violations prior to assessing a 16 noncompliance fee, provided, however, that if any additional 17 reporting violations occur prior to the expiration of either 18 30-day notice issued by the department, the department must 19 provide the supplier with a 30-day written notice to correct 20 those violations as well. Upon expiration of 36 months, the 21 department shall reinstate the 30-day notice requirements 22 provided in this subsection prior to assessing a noncompliance 23 fee. 24 (b) At the time of assessment of a noncompliance fee, 25 the department shall give the supplier written notice setting 26 forth the amount assessed, the specific provision of law, 27 rule, or order alleged to be violated, the facts alleged to 28 constitute the violation, the corrective action needed to 29 bring the party into compliance, and the rights available 30 under chapter 120 to challenge the assessment. The assessment 31 shall be final and effective unless an administrative 21 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 proceeding is requested within 20 days after receipt of the 2 written notice, and shall be enforceable pursuant to s. 3 120.69. 4 (c) Before assessing a noncompliance fee, the 5 department shall adopt rules to implement the provisions of 6 this subsection. The rules shall establish specific procedures 7 and assessment amounts for noncompliance fees authorized by 8 paragraph (a). Noncompliance fees shall be set on a sliding 9 scale based upon the type of violation, the degree of 10 noncompliance, and the potential for harm. Such rules shall 11 also authorize the application of adjustment factors 12 subsequent to initial assessment to increase or decrease the 13 total amount assessed, such as the good faith efforts or the 14 lack of good faith efforts of the supplier to comply with the 15 reporting requirements, the lack of or degree of willfulness 16 or negligence on the part of the supplier, the economic 17 benefits associated with the supplier's failure to comply with 18 the reporting violation, the supplier's previous history of 19 reporting violations, and the supplier's ability to pay the 20 noncompliance fee. 21 (d) For microbiological reporting requirements, no 22 noncompliance fee shall exceed $250, and total noncompliance 23 fees assessed shall not exceed $1,000 per assessment for all 24 reporting violations attributable to a specific facility 25 during any one month. 26 (e) For violations of reporting requirements other 27 than microbiological, the fee shall be no greater than $50 per 28 day for each day of violation, and the total amount assessed 29 shall not exceed $2,000. 30 (f) The department's assessment of a noncompliance fee 31 shall be in lieu of any civil action which may be instituted 22 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 by the department in a court of competent jurisdiction to 2 impose and recover civil penalties for any violation that 3 resulted in the fee assessment, unless the department 4 initiates a civil action for nonpayment of a fee properly 5 assessed pursuant to this subsection. 6 (g) No noncompliance fee may be assessed unless the 7 department has, within 90 days of the reporting violation, 8 provided the supplier written notice of the violation. 9 (6) The department is authorized to assess 10 administrative penalties for failure to comply with the 11 requirements of the Florida Safe Drinking Water Act. 12 (a) Prior to the assessment of an administrative 13 penalty, the department shall provide the public water system 14 a reasonable amount of time to complete the corrective action 15 necessary to bring the system back into compliance. 16 (b)1. At the time of assessment of the administrative 17 penalty, the department shall give the public water system 18 notice setting forth the amount assessed, the specific 19 provision of law, rule, or order alleged to be violated, the 20 facts alleged to constitute the violation, the corrective 21 action needed to bring the party into compliance, and the 22 rights available under chapter 120 to challenge the 23 assessment. The assessment shall be final and effective, 24 unless an administrative hearing is requested within 20 days 25 after receipt of the written notice, and shall be enforceable 26 pursuant to s. 120.69. 27 2. The department shall adopt rules to implement the 28 provisions of this subsection. The rules shall establish 29 specific procedures for implementing the penalties and shall 30 identify assessment amounts. The rules shall authorize the 31 application of adjustment factors for the purpose of 23 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 increasing or decreasing the total amount assessed subsequent 2 to initial assessment. Such factors may include the lack or 3 degree of good faith to comply with the requirements, the lack 4 or degree of willfulness or negligence on the part of the 5 owner, the compliance history of the public water system, the 6 economic benefit derived by the failure to comply with the 7 requirements, and the ability to pay. 8 (c) The amount of the penalties assessed shall be as 9 follows: 10 1. In the case of a public water system serving a 11 population of more than 10,000, the penalty shall be not less 12 than $1,000 per day per violation. 13 2. In the case of any other public water system, the 14 penalty shall be adequate to ensure compliance. 15 16 However, the total amount of the penalty assessed on any 17 public water system may not exceed $10,000 per violation. 18 Section 6. Two years after the effective date of this 19 act, the Department of Environmental Protection shall submit a 20 report to the Legislature describing the number of notices of 21 violation issued by the department seeking the imposition of 22 administrative penalties, the amount of administrative 23 penalties obtained by the department, and the efficiencies 24 gained from the provisions of this act. 25 Section 7. This act shall take effect upon becoming a 26 law. 27 28 29 ================ T I T L E A M E N D M E N T =============== 30 And the title is amended as follows: 31 remove from the title of the bill: the entire title 24 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999
HOUSE AMENDMENT Bill No. HB 1635 Amendment No. 01 (for drafter's use only) 1 and insert in lieu thereof: 2 A bill to be entitled 3 An act relating to environmental control; 4 amending s. 369.25, F.S.; granting the 5 Department of Environmental Protection 6 additional enforcement powers for aquatic plant 7 control; amending ss. 403.121, 403.131, 8 403.727, 403.860, F.S.; revising judicial and 9 administrative remedies for violations of 10 environmental laws; providing for 11 administrative penalties; requiring the 12 Department of Environmental Protection to 13 report to the Legislature; providing for 14 legislative review; providing an effective 15 date. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 25 File original & 9 copies 04/19/01 hft0006 06:17 pm 01635-fpr -471999