House Bill hb1635er

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  1                                 

  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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  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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  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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  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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  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

31  


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  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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  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.

31  


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  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

31  


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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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  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

31  


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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.--

31  


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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

17  

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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  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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  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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  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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  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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  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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  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.

26  

27  

28  

29  

30  

31  


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