House Bill hb1635e1
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HB 1635, First Engrossed
1 A bill to be entitled
2 An act relating to environmental control;
3 amending s. 369.25, F.S.; granting the
4 Department of Environmental Protection
5 additional enforcement powers for aquatic plant
6 control; amending ss. 403.121, 403.131,
7 403.727, 403.860, F.S.; revising judicial and
8 administrative remedies for violations of
9 environmental laws; providing for
10 administrative penalties; requiring the
11 Department of Environmental Protection to
12 report to the Legislature; providing for
13 legislative review; amending s. 373.0693, F.S.;
14 providing for membership on the Manasota Basin
15 Board and for the resolution of tie votes;
16 providing an effective date.
17
18 Be It Enacted by the Legislature of the State of Florida:
19
20 Section 1. Paragraph (k) is added to subsection (3) of
21 section 369.25, Florida Statutes, to read:
22 369.25 Aquatic plants; definitions; permits; powers of
23 department; penalties.--
24 (3) The department has the following powers:
25 (k) To enforce this chapter in the same manner and to
26 the same extent as provided in ss. 403.121, 403.131, 403.141,
27 and 403.161.
28 Section 2. Section 403.121, Florida Statutes, is
29 amended to read:
30 403.121 Enforcement; procedure; remedies.--The
31 department shall have the following judicial and
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HB 1635, First Engrossed
1 administrative remedies available to it for violations of this
2 chapter, as specified in s. 403.161(1).
3 (1) Judicial remedies:
4 (a) The department may institute a civil action in a
5 court of competent jurisdiction to establish liability and to
6 recover damages for any injury to the air, waters, or
7 property, including animal, plant, and aquatic life, of the
8 state caused by any violation.
9 (b) The department may institute a civil action in a
10 court of competent jurisdiction to impose and to recover a
11 civil penalty for each violation in an amount of not more than
12 $10,000 per offense. However, the court may receive evidence
13 in mitigation. Each day during any portion of which such
14 violation occurs constitutes a separate offense.
15 (c) Except as provided in paragraph (2)(c), it shall
16 not be a defense to, or ground for dismissal of, these
17 judicial remedies for damages and civil penalties that the
18 department has failed to exhaust its administrative remedies,
19 has failed to serve a notice of violation, or has failed to
20 hold an administrative hearing prior to the institution of a
21 civil action.
22 (2) Administrative remedies:
23 (a) The department may institute an administrative
24 proceeding to establish liability and to recover damages for
25 any injury to the air, waters, or property, including animal,
26 plant, or aquatic life, of the state caused by any violation.
27 The department may order that the violator pay a specified sum
28 as damages to the state. Judgment for the amount of damages
29 determined by the department may be entered in any court
30 having jurisdiction thereof and may be enforced as any other
31 judgment.
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HB 1635, First Engrossed
1 (b) If the department has reason to believe a
2 violation has occurred, it may institute an administrative
3 proceeding to order the prevention, abatement, or control of
4 the conditions creating the violation or other appropriate
5 corrective action. Except for violations involving hazardous
6 wastes, asbestos, or underground injection, the department
7 shall proceed administratively in all cases in which the
8 department seeks administrative penalties that do not exceed
9 $10,000 per assessment as calculated in accordance with
10 subsections (3), (4), (5), (6), and (7). The department shall
11 not impose administrative penalties in excess of $10,000 in a
12 notice of violation. The department shall not have more than
13 one notice of violation seeking administrative penalties
14 pending against the same party at the same time unless the
15 violations occurred at a different site or the violations were
16 discovered by the department subsequent to the filing of a
17 previous notice of violation.
18 (c) An administrative proceeding shall be instituted
19 by the department's serving of a written notice of violation
20 upon the alleged violator by certified mail. If the department
21 is unable to effect service by certified mail, the notice of
22 violation may be hand-delivered or personally served in
23 accordance with chapter 48. The notice shall specify the
24 provision of the law, rule, regulation, permit, certification,
25 or order of the department alleged to be violated and the
26 facts alleged to constitute a violation thereof. An order for
27 corrective action, penalty assessment, or damages may be
28 included with the notice. When the department is seeking to
29 impose an administrative penalty for any violation by issuing
30 a notice of violation, any corrective action needed to correct
31 the violation or damages caused by the violation must be
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HB 1635, First Engrossed
1 pursued in the notice of violation or they are waived.
2 However, no order shall become effective until after service
3 and an administrative hearing, if requested within 20 days
4 after service. Failure to request an administrative hearing
5 within this time period shall constitute a waiver thereof,
6 unless the respondent files a written notice with the
7 department within this time period opting out of the
8 administrative process initiated by the department to impose
9 administrative penalties. Any respondent choosing to opt out
10 of the administrative process initiated by the department in
11 an action that seeks the imposition of administrative
12 penalties must file a written notice with the department
13 within 20 days after service of the notice of violation opting
14 out of the administrative process. A respondent's decision to
15 opt out of the administrative process does not preclude the
16 department from initiating a state court action seeking
17 injunctive relief, damages, and the judicial imposition of
18 civil penalties.
19 (d) If a person timely files a petition challenging a
20 notice of violation, that person will thereafter be referred
21 to as the respondent. The hearing requested by the respondent
22 shall be held within 180 days after the department has
23 referred the initial petition to the Division of
24 Administrative Hearings unless the parties agree to a later
25 date. The department has the burden of proving with the
26 preponderance of the evidence that the respondent is
27 responsible for the violation. No administrative penalties
28 should be imposed unless the department satisfies that burden.
29 Following the close of the hearing, the administrative law
30 judge shall issue a final order on all matters, including the
31 imposition of an administrative penalty. When the department
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HB 1635, First Engrossed
1 seeks to enforce that portion of a final order imposing
2 administrative penalties pursuant to s. 120.69, the respondent
3 shall not assert as a defense the inappropriateness of the
4 administrative remedy. The department retains its final-order
5 authority in all administrative actions that do not request
6 the imposition of administrative penalties.
7 (e) After filing a petition requesting a formal
8 hearing in response to a notice of violation in which the
9 department imposes an administrative penalty, a respondent may
10 request that a private mediator be appointed to mediate the
11 dispute by contacting the Florida Conflict Resolution
12 Consortium within 10 days after receipt of the Initial Order
13 from the administrative law judge. The Florida Conflict
14 Resolution Consortium shall pay all of the costs of the
15 mediator and for up to 8 hours of the mediator's time per case
16 at $150 per hour. Upon notice from the respondent, the Florida
17 Conflict Resolution Consortium shall provide to the respondent
18 a panel of possible mediators from the area in which the
19 hearing on the petition would be heard. The respondent shall
20 select the mediator and notify the Florida Conflict Resolution
21 Consortium of the selection within 15 days of receipt of the
22 proposed panel of mediators. The Florida Conflict Resolution
23 Consortium shall provide all of the administrative support for
24 the mediation process. The mediation must be completed at
25 least 15 days before the final-hearing date set by the
26 administrative law judge.
27 (f) In any administrative proceeding brought by the
28 department, the prevailing party shall recover all costs as
29 provided in ss. 57.041 and 57.071. The costs must be included
30 in the final order. The respondent is the prevailing party
31 when an order is entered awarding no penalties to the
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1 department and such order has not been reversed on appeal or
2 the time for seeking judicial review has expired. The
3 respondent shall be entitled to an award of attorney's fees if
4 the administrative law judge determines that the notice of
5 violation issued by the department seeking the imposition of
6 administrative penalties was not substantially justified as
7 defined in s. 57.111(3)(e). No award of attorney's fees as
8 provided by this subsection shall exceed $15,000.
9 (g)(d) Nothing herein shall be construed as preventing
10 any other legal or administrative action in accordance with
11 law. Nothing in this subsection shall limit the department's
12 authority provided in ss. 403.121, 403.131, and 403.141, to
13 judicially pursue injunctive relief. When the department
14 exercises its authority to judicially pursue injunctive
15 relief, penalties in any amount up to the statutory maximum
16 sought by the department must be pursued as part of the state
17 court action and not by initiating a separate administrative
18 proceeding. The department retains the authority to judicially
19 pursue penalties in excess of $10,000 for violations not
20 specifically included in the administrative penalty schedule,
21 or for multiple or multi-day violations alleged to exceed a
22 total of $10,000. The department also retains the authority
23 provided in ss. 403.121, 403.131, and 403.141, to judicially
24 pursue injunctive relief and damages, if a notice of violation
25 seeking the imposition of administrative penalties has not
26 been issued. The department has the authority to enter into a
27 settlement, either before or after initiating a notice of
28 violation, and the settlement may include a penalty amount
29 different from the administrative penalty schedule. Any case
30 filed in state court because it is alleged to exceed a total
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HB 1635, First Engrossed
1 of $10,000 in penalties may be settled in the court action for
2 less than $10,000.
3 (h) Chapter 120 shall apply to any administrative
4 action taken by the department or any delegated program
5 pursuing administrative penalties in accordance with this
6 section.
7 (3) Except for violations involving hazardous wastes,
8 asbestos, or underground injection, administrative penalties
9 must be calculated according to the following schedule:
10 (a) For a drinking water contamination violation, the
11 department shall assess a penalty of $2,000 for a Maximum
12 Containment Level (MCL) violation; plus $1,000 if the
13 violation is for a primary inorganic, organic, or radiological
14 Maximum Contaminant Level or it is a fecal coliform bacteria
15 violation; plus $1,000 if the violation occurs at a community
16 water system; and plus $1,000 if any Maximum Contaminant Level
17 is exceeded by more than 100 percent. For failure to obtain a
18 clearance letter prior to placing a drinking water system into
19 service when the system would not have been eligible for
20 clearance, the department shall assess a penalty of $3,000.
21 (b) For failure to obtain a required wastewater
22 permit, other than a permit required for surface water
23 discharge, the department shall assess a penalty of $1,000.
24 For a domestic or industrial wastewater violation not
25 involving a surfacewater or groundwater quality violation, the
26 department shall assess a penalty of $2,000 for an unpermitted
27 or unauthorized discharge or effluent-limitation exceedance.
28 For an unpermitted or unauthorized discharge or
29 effluent-limitation exceedance that resulted in a surfacewater
30 or groundwater quality violation, the department shall assess
31 a penalty of $5,000.
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HB 1635, First Engrossed
1 (c) For a dredge and fill or stormwater violation, the
2 department shall assess a penalty of $1,000 for unpermitted or
3 unauthorized dredging or filling or unauthorized construction
4 of a stormwater management system against the person or
5 persons responsible for the illegal dredging or filling, or
6 unauthorized construction of a stormwater management system
7 plus $2,000 if the dredging or filling occurs in an Aquatic
8 Preserve, Outstanding Florida Water, conservation easement, or
9 Class I or Class II surfacewater, plus $1,000 if the area
10 dredged or filled is greater than one-quarter acre but less
11 than or equal to one-half acre, and plus $1,000 if the area
12 dredged or filled is greater than one-half acre but less than
13 or equal to one acre. The administrative penalty schedule
14 shall not apply to a dredge and fill violation if the area
15 dredged or filled exceeds one acre. The department retains the
16 authority to seek the judicial imposition of civil penalties
17 for all dredge and fill violations involving more than one
18 acre. The department shall assess a penalty of $3,000 for the
19 failure to complete required mitigation, failure to record a
20 required conservation easement, or for a water quality
21 violation resulting from dredging or filling activities,
22 stormwater construction activities or failure of a stormwater
23 treatment facility. For stormwater management systems serving
24 less than five acres, the department shall assess a penalty of
25 $2,000 for the failure to properly or timely construct a
26 stormwater management system. In addition to the penalties
27 authorized in this subsection, the department shall assess a
28 penalty of $5,000 per violation against the contractor or
29 agent of the owner or tenant that conducts unpermitted or
30 unauthorized dredging or filling.
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HB 1635, First Engrossed
1 (d) For mangrove trimming or alteration violations,
2 the department shall assess a penalty of $5,000 per violation
3 against the contractor or agent of the owner or tenant that
4 conducts mangrove trimming or alteration without a permit as
5 required by s. 403.9328.
6 (e) For solid waste violations, the department shall
7 assess a penalty of $2,000 for the unpermitted or unauthorized
8 disposal or storage of solid waste; plus $1,000 if the solid
9 waste is Class I or Class III (excluding yard trash) or if the
10 solid waste is construction and demolition debris in excess of
11 20 cubic yards, plus $1,000 if the waste is disposed of or
12 stored in any natural or artificial body of water or within
13 500 feet of a potable water well, plus $1,000 if the waste
14 contains PCB at a concentration of 50 parts per million or
15 greater; untreated biomedical waste; friable asbestos greater
16 than 1 cubic meter which is not wetted, bagged, and covered;
17 used oil greater than 25 gallons; or 10 or more lead acid
18 batteries. The department shall assess a penalty of $3,000 for
19 failure to properly maintain leachate control; unauthorized
20 burning; failure to have a trained spotter on duty at the
21 working face when accepting waste; failure to provide access
22 control for three consecutive inspections. The department
23 shall assess a penalty of $2,000 for failure to construct or
24 maintain a required stormwater management system.
25 (f) For an air emission violation, the department
26 shall assess a penalty of $1,000 for an unpermitted or
27 unauthorized air emission or an air-emission-permit
28 exceedance, plus $1,000 if the emission results in an air
29 quality violation, plus $3,000 if the emission was from a
30 major source and the source was major for the pollutant in
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1 violation; plus $1,000 if the emission was more than 150
2 percent of the allowable level.
3 (g) For storage tank system and petroleum
4 contamination violations, the department shall assess a
5 penalty of $5,000 for failure to empty a damaged storage
6 system as necessary to ensure that a release does not occur
7 until repairs to the storage system are completed; when a
8 release has occurred from that storage tank system; for
9 failure to timely recover free product; or for failure to
10 conduct remediation or monitoring activities until a
11 no-further-action or site-rehabilitation completion order has
12 been issued. The department shall assess a penalty of $3,000
13 for failure to timely upgrade a storage tank system. The
14 department shall assess a penalty of $2,000 for failure to
15 conduct or maintain required release detection; failure to
16 timely investigate a suspected release from a storage system;
17 depositing motor fuel into an unregistered storage tank
18 system; failure to timely assess or remediate petroleum
19 contamination; or failure to properly install a storage tank
20 system. The department shall assess a penalty of $1,000 for
21 failure to properly operate, maintain, or close a storage tank
22 system.
23 (3)(a) In addition to any judicial or administrative
24 remedy authorized by this part, the department may assess a
25 noncompliance fee for failure of any owner or operator of a
26 domestic wastewater treatment facility to comply with a permit
27 condition that requires the submittal of monthly operating
28 reports or the reporting of the characteristics of the waste
29 stream or the effects of the facility on surface or ground
30 water. For the first and second violations of the reporting
31 requirements, the fee shall not be assessed until the
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1 department has given the owner or operator at least 30 days to
2 comply with the reporting requirement. The time shall not
3 begin until the department has given the owner or operator
4 written notice of the facts alleged to constitute the
5 reporting violation, the specific provision of law, rule, or
6 order alleged to have been violated by the owner or operator,
7 the corrective action needed to bring the facility into
8 compliance, and the potential penalties that may be imposed as
9 a result of the owner's or operator's failure to comply with
10 the notice. For subsequent violations, the department does
11 not have to provide 30 days' written notice of the violations
12 prior to assessing a noncompliance fee, except as follows:
13 1. If any additional reporting violations occur prior
14 to the expiration of either of the 30-day notices issued by
15 the department, the department must provide the owner or
16 operator with 30 days' written notice to correct these
17 violations as well.
18 2. Upon the renewal of the permit, the department
19 shall reinstate the 30-day notice requirements provided in
20 this subsection prior to assessing a noncompliance fee during
21 the new permit period.
22 (b) At the time of assessment of a noncompliance fee,
23 the department shall give the owner or operator written notice
24 setting forth the amount assessed, the specific provision of
25 law, rule, or order alleged to be violated, the facts alleged
26 to constitute the violation, the corrective action needed to
27 bring the party into compliance, and the rights available
28 under chapter 120 to challenge the assessment. The assessment
29 shall be final and effective unless an administrative
30 proceeding is requested within 20 days after receipt of the
31 written notice, and shall be enforceable pursuant to s.
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1 120.69. Once the assessment has become final and effective,
2 the department may refuse to issue, modify, transfer, or renew
3 a permit to the facility until the fee has been paid.
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 the initial assessment to increase or decrease
13 the total amount assessed, such as the good faith efforts or
14 the lack of good faith efforts of the owner or operator to
15 comply with the reporting requirement, the lack of or degree
16 of willfulness or negligence on the part of the owner or
17 operator, the economic benefits associated with the owner's or
18 operator's failure to comply, the owner's or operator's
19 previous history of reporting violations, and the owner's or
20 operator's ability to pay the noncompliance fee. No
21 noncompliance fee shall exceed $250, and total noncompliance
22 fees assessed shall not exceed $1,000 per assessment for all
23 reporting violations attributable to a specific facility
24 during any one month. No noncompliance fee may be assessed
25 unless the department has, within 90 days of the reporting
26 violation, provided the owner or operator written notice of
27 the violation.
28 (d) The department's assessment of a noncompliance fee
29 shall be in lieu of any civil action which may be instituted
30 by the department in a court of competent jurisdiction to
31 impose and recover civil penalties for any violation that
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HB 1635, First Engrossed
1 resulted in the fee assessment, unless the department
2 initiates a civil action for nonpayment of a fee properly
3 assessed pursuant to this subsection.
4 (e) Fees collected pursuant to this subsection shall
5 be deposited in the Ecosystem Management and Restoration Trust
6 Fund. The department may use a portion of the fund to
7 contract for services to help in the collection of the fees
8 assessed pursuant to this subsection.
9 (4) In an administrative proceeding, in addition to
10 the penalties that may be assessed under subsection (3), the
11 department shall assess administrative penalties according to
12 the following schedule:
13 (a) For failure to satisfy financial responsibility
14 requirements or for violation of s. 377.371(1), $5,000.
15 (b) For failure to install, maintain, or use a
16 required pollution control system or device, $4,000.
17 (c) For failure to obtain a required permit before
18 construction or modification, $3,000.
19 (d) For failure to conduct required monitoring or
20 testing; failure to conduct required release detection; or
21 failure to construct in compliance with a permit, $2,000.
22 (e) For failure to maintain required staff to respond
23 to emergencies; failure to conduct required training; failure
24 to prepare, maintain, or update required contingency plans;
25 failure to adequately respond to emergencies to bring an
26 emergency situation under control; or failure to submit
27 required notification to the department, $1,000.
28 (f) For failure to prepare, submit, maintain, or use
29 required reports or other required documentation, $500.
30 (5) For failure to comply with any other departmental
31 regulatory statute or rule requirement not otherwise
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1 identified in this section, the department may assess a
2 penalty of $500.
3 (6) For each additional day during which a violation
4 occurs, the administrative penalties in subsection (3),
5 subsection (4), and subsection (5) may be assessed per day per
6 violation.
7 (7) The history of noncompliance of the violator for
8 any previous violation resulting in an executed consent order,
9 but not including a consent order entered into without a
10 finding of violation, or resulting in a final order or
11 judgment after the effective date of this law involving the
12 imposition of $2,000 or more in penalties shall be taken into
13 consideration in the following manner:
14 (a) One previous such violation within 5 years prior
15 to the filing of the notice of violation will result in a 25
16 percent per day increase in the scheduled administrative
17 penalty.
18 (b) Two previous such violations within 5 years prior
19 to the filing of the notice of violation will result in a 50
20 percent per day increase in the scheduled administrative
21 penalty.
22 (c) Three or more previous such violations within 5
23 years prior to the filing of the notice of violation will
24 result in a 100 percent per day increase in the scheduled
25 administrative penalty.
26 (8) The direct economic benefit gained by the violator
27 from the violation, where consideration of economic benefit is
28 provided by Florida law or required by federal law as part of
29 a federally delegated or approved program, shall be added to
30 the scheduled administrative penalty. The total administrative
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1 penalty, including any economic benefit added to the scheduled
2 administrative penalty, shall not exceed $10,000.
3 (9) The administrative penalties assessed for any
4 particular violation shall not exceed $5,000 against any one
5 violator, unless the violator has a history of nomcompliance,
6 the economic benefit of the violation as described in
7 subsection (8) exceeds $5,000, or there are multi-day
8 violations. The total administrative penalties shall not
9 exceed $10,000 per assessment for all violations attributable
10 to a specific person in the notice of violation.
11 (10) The administrative law judge may receive evidence
12 in mitigation. The penalties identified in subsection (3),
13 subsection (4), and subsection (5) may be reduced up to 50
14 percent by the administrative law judge for mitigating
15 circumstances, including good faith efforts to comply prior to
16 or after discovery of the violations by the department. Upon
17 an affirmative finding that the violation was caused by
18 circumstances beyond the reasonable control of the respondent
19 and could not have been prevented by respondent's due
20 diligence, the administrative law judge may further reduce the
21 penalty.
22 (11) Penalties collected pursuant to this section
23 shall be deposited in the Ecosystem Management and Restoration
24 Trust Fund or other trust fund designated by statute and shall
25 be used to fund the restoration of ecosystems, or polluted
26 areas of the state, as defined by the department, to their
27 condition before pollution occurred. The Florida Conflict
28 Resolution Consortium may use a portion of the fund to
29 administer the mediation process provided in paragraph (2)(e)
30 and to contract with private mediators for administrative
31 penalty cases.
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1 (12) The purpose of the administrative penalty
2 schedule and process is to provide a more predictable and
3 efficient manner for individuals and businesses to resolve
4 relatively minor environmental disputes. Subsection (3),
5 subsection (4), subsection (5), subsection (6), or subsection
6 (7) shall not be construed as limiting a state court in the
7 assessment of damages. The administrative penalty schedule
8 does not apply to the judicial imposition of civil penalties
9 in state court as provided in this section.
10 Section 3. Section 403.131, Florida Statutes, is
11 amended to read:
12 403.131 Injunctive relief, cumulative remedies.--
13 (1) The department may institute a civil action in a
14 court of competent jurisdiction to seek injunctive relief to
15 enforce compliance with this chapter or any rule, regulation,
16 permit certification, or order; to enjoin any violation
17 specified in s. 403.161(1); and to seek injunctive relief to
18 prevent irreparable injury to the air, waters, and property,
19 including animal, plant, and aquatic life, of the state and to
20 protect human health, safety, and welfare caused or threatened
21 by any violation.
22 (2) All the judicial and administrative remedies to
23 recover damages and penalties in this section and s. 403.121
24 are independent and cumulative except that the judicial and
25 administrative remedies to recover damages are alternative and
26 mutually exclusive.
27 Section 4. Subsection (3) of section 403.727, Florida
28 Statutes, is amended to read:
29 403.727 Violations; defenses, penalties, and
30 remedies.--
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1 (3) Violations of the provisions of this act are
2 punishable as follows:
3 (a) Any person who violates the provisions of this
4 act, the rules or orders of the department, or the conditions
5 of a permit is liable to the state for any damages specified
6 in s. 403.141 and for a civil penalty of not more than $50,000
7 for each day of continued violation, except as otherwise
8 provided herein. The department may revoke any permit issued
9 to the violator. In any action by the department against a
10 small hazardous waste generator for the improper disposal of
11 hazardous wastes, a rebuttable presumption of improper
12 disposal shall be created if the generator was notified
13 pursuant to s. 403.7234; the generator shall then have the
14 burden of proving that the disposal was proper. If the
15 generator was not so notified, the burden of proving improper
16 disposal shall be placed upon the department.
17 (b) Any person who knowingly or by exhibiting reckless
18 indifference or gross careless disregard for human health:
19 1. Transports or causes to be transported any
20 hazardous waste, as defined in s. 403.703, to a facility which
21 does not have a permit when such a permit is required under s.
22 403.707 or s. 403.722;
23 2. Disposes of, treats, or stores hazardous waste:
24 a. At any place but a hazardous waste facility which
25 has a current and valid permit pursuant to s. 403.722;
26 b. In knowing violation of any material condition or
27 requirement of such permit if such violation has a substantial
28 likelihood of endangering human health, animal or plant life,
29 or property; or
30 c. In knowing violation of any material condition or
31 requirement of any applicable rule or standard if such
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1 violation has a substantial likelihood of endangering human
2 health, animal or plant life, or property;
3 3. Makes any false statement or representation or
4 knowingly omits material information in any hazardous waste
5 application, label, manifest, record, report, permit, or other
6 document required by this act;
7 4. Generates, stores, treats, transports, disposes of,
8 or otherwise handles any hazardous waste and who knowingly
9 destroys, alters, conceals, or fails to file any record,
10 application, manifest, report, or other document required to
11 be maintained or filed for purposes of compliance with this
12 act; or
13 5. Transports without a manifest, or causes to be
14 transported without a manifest, any hazardous waste required
15 by rules adopted by the department to be accompanied by a
16 manifest
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18 is, upon conviction, guilty of a felony of the third degree,
19 punishable for the first such conviction by a fine of not more
20 than $50,000 for each day of violation or imprisonment not to
21 exceed 5 years, or both, and for any subsequent conviction by
22 a fine of not more than $100,000 per day of violation or
23 imprisonment of not more than 10 years, or both.
24 (c)1. As used in this paragraph, "Class II violation"
25 means a violation of this part, or the rules promulgated
26 pursuant to this part, which pertains to small quantity
27 generators as defined by applicable department rules and which
28 does not result in a discharge or serious threat of a
29 discharge of hazardous waste to the environment, or does not
30 involve the failure to ensure that groundwater will be
31 protected or that hazardous waste will be destined for and
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1 delivered to permitted facilities. Class II violations shall
2 include, but need not be limited to, the failure to submit
3 manifest exception reports in a timely manner, failure to
4 provide a generator's United States Environmental Protection
5 Agency identification number on the manifest, failure to
6 maintain complete personnel training records, and failure to
7 meet inspection schedule requirements for tanks and containers
8 that hold hazardous waste.
9 2. In addition to any other judicial or administrative
10 remedy authorized by this part, the department may assess a
11 noncompliance fee for any Class II violation by a small
12 quantity generator. For the first and second violations, the
13 fee shall not be assessed until the generator has failed to
14 comply after notice of noncompliance and has been given a
15 reasonable time to comply. If the owner or operator fails
16 after three or more notifications to comply with the
17 requirement to correct the Class II violation, the department
18 may assess the fee without waiting for compliance.
19 3. At the time of assessment of a noncompliance fee,
20 the department shall give the small quantity generator written
21 notice setting forth the amount assessed, the specific
22 provision of law, rule, or order alleged to be violated, the
23 facts alleged to constitute the violation, the corrective
24 action needed to bring the party into compliance, and the
25 rights available under chapter 120 to challenge the
26 assessment. The assessment shall be final and effective
27 unless an administrative proceeding is requested within 20
28 days after receipt of the written notice, and shall be
29 enforceable pursuant to s. 120.69. Once the assessment has
30 become final and effective, the department shall refuse to
31 issue, modify, transfer, or renew a permit or issue an
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HB 1635, First Engrossed
1 identification number to the facility until the fee has been
2 paid.
3 4. Before assessing any noncompliance fee, the
4 department shall adopt rules to implement the provisions of
5 this paragraph, which shall include a description of
6 activities that constitute Class II violations and the setting
7 of appropriate amounts for the noncompliance fees, based upon
8 the type of violation, but not to exceed $250. Total
9 noncompliance fees assessed shall not exceed $1,000 per
10 assessment for all violations attributable to a specific
11 facility during any one month.
12 5. The department's assessment of a noncompliance fee
13 shall be in lieu of any civil action that may be instituted by
14 the department in a court of competent jurisdiction to impose
15 and recover civil penalties for any violation that resulted in
16 the fee assessment, unless the department initiates a civil
17 action for nonpayment of a fee properly assessed pursuant to
18 this paragraph.
19 6. Noncompliance fees collected pursuant to this
20 paragraph shall be deposited in the Ecosystem Management and
21 Restoration Trust Fund. The department may use a portion of
22 the fund to contract for services to help in the collection of
23 fees assessed pursuant to this paragraph.
24 Section 5. Subsections (5) and (6) of section 403.860,
25 Florida Statutes, are amended to read:
26 403.860 Penalties and remedies.--
27 (5) In addition to any judicial or administrative
28 remedy authorized by this part, the department or a county
29 health department that has received approval by the department
30 pursuant to s. 403.862(1)(c) shall may assess administrative
31 penalties for violations of this section in accordance with s.
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HB 1635, First Engrossed
1 403.121 a noncompliance fee for failure of any supplier of
2 water of a public water system to comply with department
3 requirements for the reporting, in the manner and time
4 provided by department rule, of test results for
5 microbiological, inorganic, or organic contaminants; or
6 turbidity, radionucleides, or secondary standards.
7 (a) For the first and second violations of the
8 microbiological reporting requirements, and for the first
9 violation of other reporting requirements, the fee shall not
10 be assessed until the department has given the supplier at
11 least 30 days to comply with the reporting requirement. The
12 time shall not begin until the department has given the
13 supplier written notice of the facts alleged to constitute the
14 reporting violation, the specific provision of law, rule, or
15 order alleged to have been violated by the owner or operator,
16 the corrective action needed to bring the facility into
17 compliance, and the potential penalties that may be imposed as
18 a result of the supplier's failure to comply with the notice.
19 For subsequent violations of the microbiological reporting
20 requirements, the department does not have to provide 30-day
21 written notice of the violations prior to assessing a
22 noncompliance fee, provided, however, that if any additional
23 reporting violations occur prior to the expiration of either
24 30-day notice issued by the department, the department must
25 provide the supplier with a 30-day written notice to correct
26 those violations as well. Upon expiration of 36 months, the
27 department shall reinstate the 30-day notice requirements
28 provided in this subsection prior to assessing a noncompliance
29 fee.
30 (b) At the time of assessment of a noncompliance fee,
31 the department shall give the supplier written notice setting
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HB 1635, First Engrossed
1 forth the amount assessed, the specific provision of law,
2 rule, or order alleged to be violated, the facts alleged to
3 constitute the violation, the corrective action needed to
4 bring the party into compliance, and the rights available
5 under chapter 120 to challenge the assessment. The assessment
6 shall be final and effective unless an administrative
7 proceeding is requested within 20 days after receipt of the
8 written notice, and shall be enforceable pursuant to s.
9 120.69.
10 (c) Before assessing a noncompliance fee, the
11 department shall adopt rules to implement the provisions of
12 this subsection. The rules shall establish specific procedures
13 and assessment amounts for noncompliance fees authorized by
14 paragraph (a). Noncompliance fees shall be set on a sliding
15 scale based upon the type of violation, the degree of
16 noncompliance, and the potential for harm. Such rules shall
17 also authorize the application of adjustment factors
18 subsequent to initial assessment to increase or decrease the
19 total amount assessed, such as the good faith efforts or the
20 lack of good faith efforts of the supplier to comply with the
21 reporting requirements, the lack of or degree of willfulness
22 or negligence on the part of the supplier, the economic
23 benefits associated with the supplier's failure to comply with
24 the reporting violation, the supplier's previous history of
25 reporting violations, and the supplier's ability to pay the
26 noncompliance fee.
27 (d) For microbiological reporting requirements, no
28 noncompliance fee shall exceed $250, and total noncompliance
29 fees assessed shall not exceed $1,000 per assessment for all
30 reporting violations attributable to a specific facility
31 during any one month.
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HB 1635, First Engrossed
1 (e) For violations of reporting requirements other
2 than microbiological, the fee shall be no greater than $50 per
3 day for each day of violation, and the total amount assessed
4 shall not exceed $2,000.
5 (f) The department's assessment of a noncompliance fee
6 shall be in lieu of any civil action which may be instituted
7 by the department in a court of competent jurisdiction to
8 impose and recover civil penalties for any violation that
9 resulted in the fee assessment, unless the department
10 initiates a civil action for nonpayment of a fee properly
11 assessed pursuant to this subsection.
12 (g) No noncompliance fee may be assessed unless the
13 department has, within 90 days of the reporting violation,
14 provided the supplier written notice of the violation.
15 (6) The department is authorized to assess
16 administrative penalties for failure to comply with the
17 requirements of the Florida Safe Drinking Water Act.
18 (a) Prior to the assessment of an administrative
19 penalty, the department shall provide the public water system
20 a reasonable amount of time to complete the corrective action
21 necessary to bring the system back into compliance.
22 (b)1. At the time of assessment of the administrative
23 penalty, the department shall give the public water system
24 notice setting forth the amount assessed, the specific
25 provision of law, rule, or order alleged to be violated, the
26 facts alleged to constitute the violation, the corrective
27 action needed to bring the party into compliance, and the
28 rights available under chapter 120 to challenge the
29 assessment. The assessment shall be final and effective,
30 unless an administrative hearing is requested within 20 days
31
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HB 1635, First Engrossed
1 after receipt of the written notice, and shall be enforceable
2 pursuant to s. 120.69.
3 2. The department shall adopt rules to implement the
4 provisions of this subsection. The rules shall establish
5 specific procedures for implementing the penalties and shall
6 identify assessment amounts. The rules shall authorize the
7 application of adjustment factors for the purpose of
8 increasing or decreasing the total amount assessed subsequent
9 to initial assessment. Such factors may include the lack or
10 degree of good faith to comply with the requirements, the lack
11 or degree of willfulness or negligence on the part of the
12 owner, the compliance history of the public water system, the
13 economic benefit derived by the failure to comply with the
14 requirements, and the ability to pay.
15 (c) The amount of the penalties assessed shall be as
16 follows:
17 1. In the case of a public water system serving a
18 population of more than 10,000, the penalty shall be not less
19 than $1,000 per day per violation.
20 2. In the case of any other public water system, the
21 penalty shall be adequate to ensure compliance.
22
23 However, the total amount of the penalty assessed on any
24 public water system may not exceed $10,000 per violation.
25 Section 6. Two years after the effective date of this
26 act, the Department of Environmental Protection shall submit a
27 report to the Legislature describing the number of notices of
28 violation issued by the department seeking the imposition of
29 administrative penalties, the amount of administrative
30 penalties obtained by the department, and the efficiencies
31 gained from the provisions of this act.
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HB 1635, First Engrossed
1 Section 7. Subsection (7) of section 373.0693, Florida
2 Statutes, is amended to read:
3 373.0693 Basins; basin boards.--
4 (7) At 11:59 p.m. on December 31, 1976, the Manasota
5 Watershed Basin of the Ridge and Lower Gulf Coast Water
6 Management District, which is annexed to the Southwest Florida
7 Water Management District by change of its boundaries pursuant
8 to chapter 76-243, Laws of Florida, shall be formed into a
9 subdistrict or basin of the Southwest Florida Water Management
10 District, subject to the same provisions as the other basins
11 in such district. Such subdistrict shall be designated
12 initially as the Manasota Basin. The members of the governing
13 board of the Manasota Watershed Basin of the Ridge and Lower
14 Gulf Coast Water Management District shall become members of
15 the governing board of the Manasota Basin of the Southwest
16 Florida Water Management District. Notwithstanding other
17 provisions in this section, beginning on July 1, 2001, the
18 membership of the Manasota Basin Board shall be comprised of
19 three members from Manatee County and three members from
20 Sarasota County. Matters relating to tie votes shall be
21 resolved pursuant to subsection (6) by the ex officio chair
22 designated by the governing board to vote in case of a tie
23 vote.
24 Section 8. This act shall take effect upon becoming a
25 law.
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