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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10  ______________________________________________________________
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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                                                   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
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                                                   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.
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                                                   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
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                                                   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
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                                                   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.
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                                                   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
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                                                   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
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                                                   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
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                                                   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
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                                                   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
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                                                   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
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                                                   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),
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                                                   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
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                                                   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
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                                                   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
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                                                  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;
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                                                   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
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                                                   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
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                                                   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.
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                                                   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
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                                                   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
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                                                   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
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                                                   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
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                                                   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  
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20  
21  
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