Senate Bill sb1664c1

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    Florida Senate - 2001                           CS for SB 1664

    By the Committee on Natural Resources and Senator Laurent





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  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; providing an effective

14         date.

15

16  Be It Enacted by the Legislature of the State of Florida:

17

18         Section 1.  Paragraph (k) is added to subsection (3) of

19  section 369.25, Florida Statutes, to read:

20         369.25  Aquatic plants; definitions; permits; powers of

21  department; penalties.--

22         (3)  The department has the following powers:

23         (k)  To enforce this chapter in the same manner and to

24  the same extent as provided in ss. 403.121, 403.131, 403.141,

25  and 403.161.

26         Section 2.  Section 403.121, Florida Statutes, is

27  amended to read:

28         403.121  Enforcement; procedure; remedies.--The

29  department shall have the following judicial and

30  administrative remedies available to it for violations of this

31  chapter, as specified in s. 403.161(1).

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    Florida Senate - 2001                           CS for SB 1664
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  1         (1)  Judicial remedies:

  2         (a)  The department may institute a civil action in a

  3  court of competent jurisdiction to establish liability and to

  4  recover damages for any injury to the air, waters, or

  5  property, including animal, plant, and aquatic life, of the

  6  state caused by any violation.

  7         (b)  The department may institute a civil action in a

  8  court of competent jurisdiction to impose and to recover a

  9  civil penalty for each violation in an amount of not more than

10  $10,000 per offense.  However, the court may receive evidence

11  in mitigation. Each day during any portion of which such

12  violation occurs constitutes a separate offense.

13         (c)  Except as provided in paragraph (2)(c), it shall

14  not be a defense to, or ground for dismissal of, these

15  judicial remedies for damages and civil penalties that the

16  department has failed to exhaust its administrative remedies,

17  has failed to serve a notice of violation, or has failed to

18  hold an administrative hearing prior to the institution of a

19  civil action.

20         (2)  Administrative remedies:

21         (a)  The department may institute an administrative

22  proceeding to establish liability and to recover damages for

23  any injury to the air, waters, or property, including animal,

24  plant, or aquatic life, of the state caused by any violation.

25  The department may order that the violator pay a specified sum

26  as damages to the state. Judgment for the amount of damages

27  determined by the department may be entered in any court

28  having jurisdiction thereof and may be enforced as any other

29  judgment.

30         (b)  If the department has reason to believe a

31  violation has occurred, it may institute an administrative

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    Florida Senate - 2001                           CS for SB 1664
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  1  proceeding to order the prevention, abatement, or control of

  2  the conditions creating the violation or other appropriate

  3  corrective action. Except for violations involving hazardous

  4  wastes, asbestos, or underground injection, the department

  5  shall proceed administratively in all cases in which the

  6  department seeks administrative penalties that do not exceed

  7  $10,000 per assessment as calculated in accordance with

  8  subsections (3), (4), (5), (6), and (7). The department shall

  9  not impose administrative penalties in excess of $10,000 in a

10  notice of violation. The department shall not have more than

11  one notice of violation seeking administrative penalties

12  pending against the same party at the same time unless the

13  violations occurred at a different site or the violations were

14  discovered by the department subsequent to the filing of a

15  previous notice of violation.

16         (c)  An administrative proceeding shall be instituted

17  by the department's serving of a written notice of violation

18  upon the alleged violator by certified mail. If the department

19  is unable to effect service by certified mail, the notice of

20  violation may be hand-delivered or personally served in

21  accordance with chapter 48. The notice shall specify the

22  provision of the law, rule, regulation, permit, certification,

23  or order of the department alleged to be violated and the

24  facts alleged to constitute a violation thereof. An order for

25  corrective action, penalty assessment, or damages may be

26  included with the notice. When the department is seeking to

27  impose an administrative penalty for any violation by issuing

28  a notice of violation, any corrective action needed to correct

29  the violation or damages caused by the violation must be

30  pursued in the notice of violation or they are waived.

31  However, no order shall become effective until after service

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    Florida Senate - 2001                           CS for SB 1664
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  1  and an administrative hearing, if requested within 20 days

  2  after service. Failure to request an administrative hearing

  3  within this time period shall constitute a waiver thereof,

  4  unless the respondent files a written notice with the

  5  department within this time period opting out of the

  6  administrative process initiated by the department to impose

  7  administrative penalties. Any respondent choosing to opt out

  8  of the administrative process initiated by the department in

  9  an action that seeks the imposition of administrative

10  penalties must file a written notice with the department

11  within 20 days after service of the notice of violation opting

12  out of the administrative process. A respondent's decision to

13  opt out of the administrative process does not preclude the

14  department from initiating a state court action seeking

15  injunctive relief, damages, and the judicial imposition of

16  civil penalties.

17         (d)  If a person timely files a petition challenging a

18  notice of violation, that person will thereafter be referred

19  to as the respondent. The hearing requested by the respondent

20  shall be held within 180 days after the department has

21  referred the initial petition to the Division of

22  Administrative Hearings unless the parties agree to a later

23  date. The department has the burden of proving with the

24  preponderance of the evidence that the respondent is

25  responsible for the violation. No administrative penalties

26  should be imposed unless the department satisfies that burden.

27  Following the close of the hearing, the administrative law

28  judge shall issue a final order on all matters, including the

29  imposition of an administrative penalty. When the department

30  seeks to enforce that portion of a final order imposing

31  administrative penalties pursuant to s. 120.69, the respondent

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    Florida Senate - 2001                           CS for SB 1664
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  1  shall not assert as a defense the inappropriateness of the

  2  administrative remedy. The department retains its final-order

  3  authority in all administrative actions that do not request

  4  the imposition of administrative penalties.

  5         (e)  After filing a petition requesting a formal

  6  hearing in response to a notice of violation in which the

  7  department imposes an administrative penalty, a respondent may

  8  request that a private mediator be appointed to mediate the

  9  dispute by contacting the Florida Conflict Resolution

10  Consortium within 10 days after receipt of the Initial Order

11  from the administrative law judge. The Florida Conflict

12  Resolution Consortium shall pay all of the costs of the

13  mediator and for up to 8 hours of the mediator's time per case

14  at $150 per hour. Upon notice from the respondent, the Florida

15  Conflict Resolution Consortium shall provide a panel of

16  possible mediators from the area in which the hearing on the

17  petition would be heard to the respondent. The respondent

18  shall select the mediator and notify the Florida Conflict

19  Resolution Consortium of the selection within 15 days of

20  receipt of the proposed panel of mediators. The Florida

21  Conflict Resolution Consortium shall provide all of the

22  administrative support for the mediation process. The

23  mediation must be completed at least 15 days before the

24  final-hearing date set by the administrative law judge.

25         (f)  In any administrative proceeding brought by the

26  department, the prevailing party shall recover all costs as

27  provided in ss. 57.041 and 57.071. The costs must be included

28  in the final order. The respondent is the prevailing party

29  when an order is entered awarding no penalties to the

30  department and such order has not been reversed on appeal or

31  the time for seeking judicial review has expired. The

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    Florida Senate - 2001                           CS for SB 1664
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  1  respondent shall be entitled to an award of attorney's fees if

  2  the administrative law judge determines that the notice of

  3  violation issued by the department seeking the imposition of

  4  administrative penalties was not substantially justified as

  5  defined in s. 57.111(3)(e). No award of attorney's fees as

  6  provided by this subsection shall exceed $15,000.

  7         (g)(d)  Nothing herein shall be construed as preventing

  8  any other legal or administrative action in accordance with

  9  law. Nothing in this subsection shall limit the department's

10  authority provided in ss. 403.121, 403.131, and 403.141, to

11  judicially pursue injunctive relief. When the department

12  exercises its authority to judicially pursue injunctive

13  relief, penalties in any amount up to the statutory maximum

14  sought by the department must be pursued as part of the state

15  court action and not by initiating a separate administrative

16  proceeding. The department retains the authority to judicially

17  pursue penalties in excess of $10,000 for violations not

18  specifically included in the administrative penalty schedule,

19  or for multiple or multi-day violations alleged to exceed a

20  total of $10,000. The department also retains the authority

21  provided in ss. 403.121, 403.131, and 403.141, to judicially

22  pursue injunctive relief and damages, if a notice of violation

23  seeking the imposition of administrative penalties has not

24  been issued. The department has the authority to enter into a

25  settlement, either before or after initiating a notice of

26  violation, and the settlement may include a penalty amount

27  different from the administrative penalty schedule. Any case

28  filed in state court because it is alleged to exceed a total

29  of $10,000 in penalties may be settled in the court action for

30  less than $10,000.

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    Florida Senate - 2001                           CS for SB 1664
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  1         (h)  Chapter 120 shall apply to any administrative

  2  action taken by the department or any delegated program

  3  pursuing administrative penalties in accordance with this

  4  section.

  5         (3)  Except for violations involving hazardous wastes,

  6  asbestos, or underground injection, administrative penalties

  7  must be calculated according to the following schedule:

  8         (a)  For a drinking water contamination violation, the

  9  department shall assess a penalty of $2,000 for a Maximum

10  Containment Level (MCL) violation; plus $1,000 if the

11  violation is for a primary inorganic, organic, or radiological

12  Maximum Contaminant Level or it is a fecal coliform bacteria

13  violation; plus $1,000 if the violation occurs at a community

14  water system; and plus $1,000 if any Maximum Contaminant Level

15  is exceeded by more than 100 percent. For failure to obtain a

16  clearance letter prior to placing a drinking water system into

17  service when the system would not have been eligible for

18  clearance - $3,000.

19         (b)  For failure to obtain a required wastewater

20  permit, other than a permit required for surface water

21  discharge, the department shall assess a penalty of $1,000.

22  For a domestic or industrial wastewater violation not

23  involving a surfacewater or groundwater quality violation, the

24  department shall assess a penalty of $2,000 for an unpermitted

25  or unauthorized discharge or effluent-limitation exceedance.

26  For an unpermitted or unauthorized discharge or

27  effluent-limitation exceedance that resulted in a surfacewater

28  or groundwater quality violation, the department shall assess

29  a penalty of $5,000.

30         (c)  For a dredge and fill or stormwater violation, the

31  department shall assess a penalty of $1,000 for unpermitted or

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    Florida Senate - 2001                           CS for SB 1664
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  1  unauthorized dredging or filling or unauthorized construction

  2  of a stormwater management system against the person or

  3  persons responsible for the illegal dredging or filling, or

  4  unauthorized construction of a stormwater management system

  5  plus $2,000 if the dredging or filling occurs in an Aquatic

  6  Preserve, Outstanding Florida Water, conservation easement, or

  7  Class I or Class II surfacewater, plus $1,000 if the area

  8  dredged or filled is greater than one-quarter acre but less

  9  than one-half acre, and plus $1,000 if the area dredged or

10  filled is greater than one-half acre but less than one acre.

11  The administrative penalty schedule shall not apply to a

12  dredge and fill violation if the area dredged or filled

13  exceeds one acre. The department retains the authority to seek

14  the judicial imposition of civil penalties for all dredge and

15  fill violations involving more than one acre. The department

16  shall assess a penalty of $3,000 for the failure to complete

17  required mitigation, failure to record a required conservation

18  easement, or for a water quality violation resulting from

19  dredging or filling activities, stormwater construction

20  activities or failure of a stormwater treatment facility. For

21  stormwater management systems serving less than five acres,

22  the department shall assess a penalty of $2,000 for the

23  failure to properly or timely construct a stormwater

24  management system. In addition to the penalties authorized in

25  this subsection, the department shall assess a penalty of

26  $5,000 per violation against the contractor or agent of the

27  owner or tenant that conducts unpermitted or unauthorized

28  dredging or filling.

29         (d)  For mangrove trimming or alteration violations,

30  the department shall assess a penalty of $5,000 per violation

31  against the contractor or agent of the owner or tenant that

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    Florida Senate - 2001                           CS for SB 1664
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  1  conducts mangrove trimming or alteration without a permit as

  2  required by s. 403.9328.

  3         (e)  For solid waste violations, the department shall

  4  assess a penalty of $2,000 for the unpermitted or unauthorized

  5  disposal or storage of solid waste; plus $1,000 if the solid

  6  waste is Class I or Class III (excluding yard trash) or if the

  7  solid waste is construction and demolition debris in excess of

  8  20 cubic yards, plus $1,000 if the waste is disposed of or

  9  stored in any natural or artificial body of water or within

10  500 feet of a potable water well, plus $1,000 if the waste

11  contains PCB at a concentration of 50 parts per million or

12  greater; untreated biomedical waste; friable asbestos greater

13  than 1 cubic meter which is not wetted, bagged, and covered;

14  used oil greater than 25 gallons; or 10 or more lead acid

15  batteries. The department shall assess a penalty of $3,000 for

16  failure to properly maintain leachate control; unauthorized

17  burning; failure to have a trained spotter on duty at the

18  working face when accepting waste; failure to provide access

19  control for three consecutive inspections. The department

20  shall assess a penalty of $2,000 for failure to construct or

21  maintain a required stormwater management system.

22         (f)  For an air emission violation, the department

23  shall assess a penalty of $1,000 for an unpermitted or

24  unauthorized air emission or an air-emission-permit

25  exceedance, plus $1,000 if the emission results in an air

26  quality violation, plus $3,000 if the emission was from a

27  major source and the source was major for the pollutant in

28  violation; plus $1,000 if the emission was more than 150

29  percent of the allowable level.

30         (g)  For storage tank system and petroleum

31  contamination violations, the department shall assess a

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  1  penalty of $5,000 for failure to empty a damaged storage

  2  system as necessary to ensure that a release does not occur

  3  until repairs to the storage system are completed; when a

  4  release has occurred from that storage tank system; for

  5  failure to timely recover free product; or for failure to

  6  conduct remediation or monitoring activities until a

  7  no-further-action or site-rehabilitation completion order has

  8  been issued. The department shall assess a penalty of $3,000

  9  for failure to timely upgrade a storage tank system. The

10  department shall assess a penalty of $2,000 for failure to

11  conduct or maintain required release detection; failure to

12  timely investigate a suspected release from a storage system;

13  depositing motor fuel into an unregistered storage tank

14  system; failure to timely assess or remediate petroleum

15  contamination; or failure to properly install a storage tank

16  system. The department shall assess a penalty of $1,000 for

17  failure to properly operate, maintain, or close a storage tank

18  system.

19         (3)(a)  In addition to any judicial or administrative

20  remedy authorized by this part, the department may assess a

21  noncompliance fee for failure of any owner or operator of a

22  domestic wastewater treatment facility to comply with a permit

23  condition that requires the submittal of monthly operating

24  reports or the reporting of the characteristics of the waste

25  stream or the effects of the facility on surface or ground

26  water.  For the first and second violations of the reporting

27  requirements, the fee shall not be assessed until the

28  department has given the owner or operator at least 30 days to

29  comply with the reporting requirement.  The time shall not

30  begin until the department has given the owner or operator

31  written notice of the facts alleged to constitute the

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  1  reporting violation, the specific provision of law, rule, or

  2  order alleged to have been violated by the owner or operator,

  3  the corrective action needed to bring the facility into

  4  compliance, and the potential penalties that may be imposed as

  5  a result of the owner's or operator's failure to comply with

  6  the notice.  For subsequent violations, the department does

  7  not have to provide 30 days' written notice of the violations

  8  prior to assessing a noncompliance fee, except as follows:

  9         1.  If any additional reporting violations occur prior

10  to the expiration of either of the 30-day notices issued by

11  the department, the department must provide the owner or

12  operator with 30 days' written notice to correct these

13  violations as well.

14         2.  Upon the renewal of the permit, the department

15  shall reinstate the 30-day notice requirements provided in

16  this subsection prior to assessing a noncompliance fee during

17  the new permit period.

18         (b)  At the time of assessment of a noncompliance fee,

19  the department shall give the owner or operator written notice

20  setting forth the amount assessed, the specific provision of

21  law, rule, or order alleged to be violated, the facts alleged

22  to constitute the violation, the corrective action needed to

23  bring the party into compliance, and the rights available

24  under chapter 120 to challenge the assessment.  The assessment

25  shall be final and effective unless an administrative

26  proceeding is requested within 20 days after receipt of the

27  written notice, and shall be enforceable pursuant to s.

28  120.69.  Once the assessment has become final and effective,

29  the department may refuse to issue, modify, transfer, or renew

30  a permit to the facility until the fee has been paid.

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  1         (c)  Before assessing a noncompliance fee, the

  2  department shall adopt rules to implement the provisions of

  3  this subsection. The rules shall establish specific procedures

  4  and assessment amounts for noncompliance fees authorized by

  5  paragraph (a). Noncompliance fees shall be set on a sliding

  6  scale based upon the type of violation, the degree of

  7  noncompliance, and the potential for harm.  Such rules shall

  8  also authorize the application of adjustment factors

  9  subsequent to the initial assessment to increase or decrease

10  the total amount assessed, such as the good faith efforts or

11  the lack of good faith efforts of the owner or operator to

12  comply with the reporting requirement, the lack of or degree

13  of willfulness or negligence on the part of the owner or

14  operator, the economic benefits associated with the owner's or

15  operator's failure to comply, the owner's or operator's

16  previous history of reporting violations, and the owner's or

17  operator's ability to pay the noncompliance fee.  No

18  noncompliance fee shall exceed $250, and total noncompliance

19  fees assessed shall not exceed $1,000 per assessment for all

20  reporting violations attributable to a specific facility

21  during any one month. No noncompliance fee may be assessed

22  unless the department has, within 90 days of the reporting

23  violation, provided the owner or operator written notice of

24  the violation.

25         (d)  The department's assessment of a noncompliance fee

26  shall be in lieu of any civil action which may be instituted

27  by the department in a court of competent jurisdiction to

28  impose and recover civil penalties for any violation that

29  resulted in the fee assessment, unless the department

30  initiates a civil action for nonpayment of a fee properly

31  assessed pursuant to this subsection.

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  1         (e)  Fees collected pursuant to this subsection shall

  2  be deposited in the Ecosystem Management and Restoration Trust

  3  Fund.  The department may use a portion of the fund to

  4  contract for services to help in the collection of the fees

  5  assessed pursuant to this subsection.

  6         (4)  In an administrative proceeding, in addition to

  7  the penalties that may be assessed under subsection (3), the

  8  department shall assess administrative penalties according to

  9  the following schedule:

10         (a)  For failure to satisfy financial responsibility

11  requirements or for violation of s. 377.371(1), $5,000.

12         (b)  For failure to install, maintain, or use a

13  required pollution control system or device, $4,000.

14         (c)  For failure to obtain a required permit before

15  construction or modification, $3,000.

16         (d)  For failure to conduct required monitoring or

17  testing; failure to conduct required release detection; or

18  failure to construct in compliance with a permit, $2,000.

19         (e)  For failure to maintain required staff to respond

20  to emergencies; failure to conduct required training; failure

21  to prepare, maintain, or update required contingency plans;

22  failure to adequately respond to emergencies to bring an

23  emergency situation under control; or failure to submit

24  required notification to the department, $1,000.

25         (f)  For failure to prepare, submit, maintain, or use

26  required reports or other required documentation, $500.

27         (5)  For failure to comply with any other departmental

28  regulatory statute or rule requirement not otherwise

29  identified in this section, the department may assess a

30  penalty of $500.

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  1         (6)  For each additional day during which a violation

  2  occurs, the administrative penalties in subsection (3),

  3  subsection (4), and subsection (5) may be assessed per day per

  4  violation.

  5         (7)  The history of noncompliance of the violator for

  6  any previous violation resulting in an executed consent order,

  7  but not including a consent order entered into without a

  8  finding of violation, or resulting in a final order or

  9  judgment after the effective date of this law involving the

10  imposition of $2,000 or more in penalties shall be taken into

11  consideration in the following manner:

12         (a)  One previous such violation within 5 years prior

13  to the filing of the notice of violation will result in a 25

14  percent per day increase in the scheduled administrative

15  penalty.

16         (b)  Two previous such violations within 5 years prior

17  to the filing of the notice of violation will result in a 50

18  percent per day increase in the scheduled administrative

19  penalty.

20         (c)  Three or more previous such violations within 5

21  years prior to the filing of the notice of violation will

22  result in a 100 percent per day increase in the scheduled

23  administrative penalty.

24         (8)  The direct economic benefit gained by the violator

25  from the violation shall be added to the scheduled

26  administrative penalty. The total administrative penalty,

27  including any economic benefit added to the scheduled

28  administrative penalty, shall not exceed $10,000.

29         (9)  The administrative penalties assessed for any

30  particular violation shall not exceed $5,000 against any one

31  violator, unless the violator has a history of noncompliance,

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  1  the economic benefit of the violation exceeds $5,000, or there

  2  are multi-day violations. The total administrative penalties

  3  shall not exceed $10,000 per assessment for all violations

  4  attributable to a specific person in the notice of violation.

  5         (10)  The administrative law judge may receive evidence

  6  in mitigation. The penalties identified in subsection (3),

  7  subsection (4), and subsection (5) may be reduced up to 50

  8  percent by the administrative law judge for mitigating

  9  circumstances, including good faith efforts to comply prior to

10  or after discovery of the violations by the department. Upon

11  an affirmative finding that the violation was caused by

12  circumstances beyond the reasonable control of the respondent

13  and could not have been prevented by respondent's due

14  diligence, the administrative law judge may further reduce the

15  penalty.

16         (11)  Penalties collected pursuant to this section

17  shall be deposited in the Ecosystem Management and Restoration

18  Trust Fund or other trust fund designated by statute and shall

19  be used to fund the restoration of ecosystems, or polluted

20  areas of the state, as defined by the department, to their

21  condition before pollution occurred. The Florida Conflict

22  Resolution Consortium may use a portion of the fund to

23  administer the mediation process provided in paragraph (2)(e)

24  and to contract with private mediators for administrative

25  penalty cases.

26         (12)  The purpose of the administrative penalty

27  schedule and process is to provide a more predictable and

28  efficient manner for individuals and businesses to resolve

29  relatively minor environmental disputes. Subsection (3),

30  subsection (4), subsection (5), subsection (6), or subsection

31  (7) shall not be construed as limiting a state court in the

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  1  assessment of damages. The administrative penalty schedule

  2  does not apply to the judicial imposition of civil penalties

  3  in state court as provided in this section.

  4         Section 3.  Section 403.131, Florida Statutes, is

  5  amended to read:

  6         403.131  Injunctive relief, cumulative remedies.--

  7         (1)  The department may institute a civil action in a

  8  court of competent jurisdiction to seek injunctive relief to

  9  enforce compliance with this chapter or any rule, regulation,

10  permit certification, or order; to enjoin any violation

11  specified in s. 403.161(1); and to seek injunctive relief to

12  prevent irreparable injury to the air, waters, and property,

13  including animal, plant, and aquatic life, of the state and to

14  protect human health, safety, and welfare caused or threatened

15  by any violation.

16         (2)  All the judicial and administrative remedies to

17  recover damages and penalties in this section and s. 403.121

18  are independent and cumulative except that the judicial and

19  administrative remedies to recover damages are alternative and

20  mutually exclusive.

21         Section 4.  Subsection (3) of section 403.727, Florida

22  Statutes, is amended to read:

23         403.727  Violations; defenses, penalties, and

24  remedies.--

25         (3)  Violations of the provisions of this act are

26  punishable as follows:

27         (a)  Any person who violates the provisions of this

28  act, the rules or orders of the department, or the conditions

29  of a permit is liable to the state for any damages specified

30  in s. 403.141 and for a civil penalty of not more than $50,000

31  for each day of continued violation, except as otherwise

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  1  provided herein. The department may revoke any permit issued

  2  to the violator.  In any action by the department against a

  3  small hazardous waste generator for the improper disposal of

  4  hazardous wastes, a rebuttable presumption of improper

  5  disposal shall be created if the generator was notified

  6  pursuant to s. 403.7234; the generator shall then have the

  7  burden of proving that the disposal was proper. If the

  8  generator was not so notified, the burden of proving improper

  9  disposal shall be placed upon the department.

10         (b)  Any person who knowingly or by exhibiting reckless

11  indifference or gross careless disregard for human health:

12         1.  Transports or causes to be transported any

13  hazardous waste, as defined in s. 403.703, to a facility which

14  does not have a permit when such a permit is required under s.

15  403.707 or s. 403.722;

16         2.  Disposes of, treats, or stores hazardous waste:

17         a.  At any place but a hazardous waste facility which

18  has a current and valid permit pursuant to s. 403.722;

19         b.  In knowing violation of any material condition or

20  requirement of such permit if such violation has a substantial

21  likelihood of endangering human health, animal or plant life,

22  or property; or

23         c.  In knowing violation of any material condition or

24  requirement of any applicable rule or standard if such

25  violation has a substantial likelihood of endangering human

26  health, animal or plant life, or property;

27         3.  Makes any false statement or representation or

28  knowingly omits material information in any hazardous waste

29  application, label, manifest, record, report, permit, or other

30  document required by this act;

31

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  1         4.  Generates, stores, treats, transports, disposes of,

  2  or otherwise handles any hazardous waste and who knowingly

  3  destroys, alters, conceals, or fails to file any record,

  4  application, manifest, report, or other document required to

  5  be maintained or filed for purposes of compliance with this

  6  act; or

  7         5.  Transports without a manifest, or causes to be

  8  transported without a manifest, any hazardous waste required

  9  by rules adopted by the department to be accompanied by a

10  manifest

11

12  is, upon conviction, guilty of a felony of the third degree,

13  punishable for the first such conviction by a fine of not more

14  than $50,000 for each day of violation or imprisonment not to

15  exceed 5 years, or both, and for any subsequent conviction by

16  a fine of not more than $100,000 per day of violation or

17  imprisonment of not more than 10 years, or both.

18         (c)1.  As used in this paragraph, "Class II violation"

19  means a violation of this part, or the rules promulgated

20  pursuant to this part, which pertains to small quantity

21  generators as defined by applicable department rules and which

22  does not result in a discharge or serious threat of a

23  discharge of hazardous waste to the environment, or does not

24  involve the failure to ensure that groundwater will be

25  protected or that hazardous waste will be destined for and

26  delivered to permitted facilities.  Class II violations shall

27  include, but need not be limited to, the failure to submit

28  manifest exception reports in a timely manner, failure to

29  provide a generator's United States Environmental Protection

30  Agency identification number on the manifest, failure to

31  maintain complete personnel training records, and failure to

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  1  meet inspection schedule requirements for tanks and containers

  2  that hold hazardous waste.

  3         2.  In addition to any other judicial or administrative

  4  remedy authorized by this part, the department may assess a

  5  noncompliance fee for any Class II violation by a small

  6  quantity generator.  For the first and second violations, the

  7  fee shall not be assessed until the generator has failed to

  8  comply after notice of noncompliance and has been given a

  9  reasonable time to comply. If the owner or operator fails

10  after three or more notifications to comply with the

11  requirement to correct the Class II violation, the department

12  may assess the fee without waiting for compliance.

13         3.  At the time of assessment of a noncompliance fee,

14  the department shall give the small quantity generator written

15  notice setting forth the amount assessed, the specific

16  provision of law, rule, or order alleged to be violated, the

17  facts alleged to constitute the violation, the corrective

18  action needed to bring the party into compliance, and the

19  rights available under chapter 120 to challenge the

20  assessment.  The assessment shall be final and effective

21  unless an administrative proceeding is requested within 20

22  days after receipt of the written notice, and shall be

23  enforceable pursuant to s. 120.69.  Once the assessment has

24  become final and effective, the department shall refuse to

25  issue, modify, transfer, or renew a permit or issue an

26  identification number to the facility until the fee has been

27  paid.

28         4.  Before assessing any noncompliance fee, the

29  department shall adopt rules to implement the provisions of

30  this paragraph, which shall include a description of

31  activities that constitute Class II violations and the setting

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  1  of appropriate amounts for the noncompliance fees, based upon

  2  the type of violation, but not to exceed $250.  Total

  3  noncompliance fees assessed shall not exceed $1,000 per

  4  assessment for all violations attributable to a specific

  5  facility during any one month.

  6         5.  The department's assessment of a noncompliance fee

  7  shall be in lieu of any civil action that may be instituted by

  8  the department in a court of competent jurisdiction to impose

  9  and recover civil penalties for any violation that resulted in

10  the fee assessment, unless the department initiates a civil

11  action for nonpayment of a fee properly assessed pursuant to

12  this paragraph.

13         6.  Noncompliance fees collected pursuant to this

14  paragraph shall be deposited in the Ecosystem Management and

15  Restoration Trust Fund.  The department may use a portion of

16  the fund to contract for services to help in the collection of

17  fees assessed pursuant to this paragraph.

18         Section 5.  Subsections (5) and (6) of section 403.860,

19  Florida Statutes, are amended to read:

20         403.860  Penalties and remedies.--

21         (5)  In addition to any judicial or administrative

22  remedy authorized by this part, the department or a county

23  health department that has received approval by the department

24  pursuant to s. 403.862(1)(c) shall may assess administrative

25  penalties for violations of this section in accordance with s.

26  403.121 a noncompliance fee for failure of any supplier of

27  water of a public water system to comply with department

28  requirements for the reporting, in the manner and time

29  provided by department rule, of test results for

30  microbiological, inorganic, or organic contaminants; or

31  turbidity, radionucleides, or secondary standards.

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  1         (a)  For the first and second violations of the

  2  microbiological reporting requirements, and for the first

  3  violation of other reporting requirements, the fee shall not

  4  be assessed until the department has given the supplier at

  5  least 30 days to comply with the reporting requirement.  The

  6  time shall not begin until the department has given the

  7  supplier written notice of the facts alleged to constitute the

  8  reporting violation, the specific provision of law, rule, or

  9  order alleged to have been violated by the owner or operator,

10  the corrective action needed to bring the facility into

11  compliance, and the potential penalties that may be imposed as

12  a result of the supplier's failure to comply with the notice.

13  For subsequent violations of the microbiological reporting

14  requirements, the department does not have to provide 30-day

15  written notice of the violations prior to assessing a

16  noncompliance fee, provided, however, that if any additional

17  reporting violations occur prior to the expiration of either

18  30-day notice issued by the department, the department must

19  provide the supplier with a 30-day written notice to correct

20  those violations as well. Upon expiration of 36 months, the

21  department shall reinstate the 30-day notice requirements

22  provided in this subsection prior to assessing a noncompliance

23  fee.

24         (b)  At the time of assessment of a noncompliance fee,

25  the department shall give the supplier written notice setting

26  forth the amount assessed, the specific provision of law,

27  rule, or order alleged to be violated, the facts alleged to

28  constitute the violation, the corrective action needed to

29  bring the party into compliance, and the rights available

30  under chapter 120 to challenge the assessment.  The assessment

31  shall be final and effective unless an administrative

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  1  proceeding is requested within 20 days after receipt of the

  2  written notice, and shall be enforceable pursuant to s.

  3  120.69.

  4         (c)  Before assessing a noncompliance fee, the

  5  department shall adopt rules to implement the provisions of

  6  this subsection. The rules shall establish specific procedures

  7  and assessment amounts for noncompliance fees authorized by

  8  paragraph (a). Noncompliance fees shall be set on a sliding

  9  scale based upon the type of violation, the degree of

10  noncompliance, and the potential for harm.  Such rules shall

11  also authorize the application of adjustment factors

12  subsequent to initial assessment to increase or decrease the

13  total amount assessed, such as the good faith efforts or the

14  lack of good faith efforts of the supplier to comply with the

15  reporting requirements, the lack of or degree of willfulness

16  or negligence on the part of the supplier, the economic

17  benefits associated with the supplier's failure to comply with

18  the reporting violation, the supplier's previous history of

19  reporting violations, and the supplier's ability to pay the

20  noncompliance fee.

21         (d)  For microbiological reporting requirements, no

22  noncompliance fee shall exceed $250, and total noncompliance

23  fees assessed shall not exceed $1,000 per assessment for all

24  reporting violations attributable to a specific facility

25  during any one month.

26         (e)  For violations of reporting requirements other

27  than microbiological, the fee shall be no greater than $50 per

28  day for each day of violation, and the total amount assessed

29  shall not exceed $2,000.

30         (f)  The department's assessment of a noncompliance fee

31  shall be in lieu of any civil action which may be instituted

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  1  by the department in a court of competent jurisdiction to

  2  impose and recover civil penalties for any violation that

  3  resulted in the fee assessment, unless the department

  4  initiates a civil action for nonpayment of a fee properly

  5  assessed pursuant to this subsection.

  6         (g)  No noncompliance fee may be assessed unless the

  7  department has, within 90 days of the reporting violation,

  8  provided the supplier written notice of the violation.

  9         (6)  The department is authorized to assess

10  administrative penalties for failure to comply with the

11  requirements of the Florida Safe Drinking Water Act.

12         (a)  Prior to the assessment of an administrative

13  penalty, the department shall provide the public water system

14  a reasonable amount of time to complete the corrective action

15  necessary to bring the system back into compliance.

16         (b)1.  At the time of assessment of the administrative

17  penalty, the department shall give the public water system

18  notice setting forth the amount assessed, the specific

19  provision of law, rule, or order alleged to be violated, the

20  facts alleged to constitute the violation, the corrective

21  action needed to bring the party into compliance, and the

22  rights available under chapter 120 to challenge the

23  assessment.  The assessment shall be final and effective,

24  unless an administrative hearing is requested within 20 days

25  after receipt of the written notice, and shall be enforceable

26  pursuant to s. 120.69.

27         2.  The department shall adopt rules to implement the

28  provisions of this subsection.  The rules shall establish

29  specific procedures for implementing the penalties and shall

30  identify assessment amounts.  The rules shall authorize the

31  application of adjustment factors for the purpose of

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  1  increasing or decreasing the total amount assessed subsequent

  2  to initial assessment. Such factors may include the lack or

  3  degree of good faith to comply with the requirements, the lack

  4  or degree of willfulness or negligence on the part of the

  5  owner, the compliance history of the public water system, the

  6  economic benefit derived by the failure to comply with the

  7  requirements, and the ability to pay.

  8         (c)  The amount of the penalties assessed shall be as

  9  follows:

10         1.  In the case of a public water system serving a

11  population of more than 10,000, the penalty shall be not less

12  than $1,000 per day per violation.

13         2.  In the case of any other public water system, the

14  penalty shall be adequate to ensure compliance.

15

16  However, the total amount of the penalty assessed on any

17  public water system may not exceed $10,000 per violation.

18         Section 6.  Two years after the effective date of this

19  act, the Department of Environmental Protection shall submit a

20  report to the Legislature describing the number of notices of

21  violation issued by the department seeking the imposition of

22  administrative penalties, the amount of administrative

23  penalties obtained by the department, and the efficiencies

24  gained from the provisions of this act.

25         Section 7.  This act shall take effect upon becoming a

26  law.

27

28

29

30

31

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1664

  3

  4  The CS deletes amendments to ss. 373.129, 373.437, 377.37, and
    378.211, F.S., which would have authorized the imposition of
  5  administrative penalties by water management districts and for
    violations relating to oil and gas and land reclamation.
  6
    Provisions are included that enable a respondent to a notice
  7  of an administrative penalty to opt out of the administrative
    process initiated by the Department of Environmental
  8  Protection (DEP). In such cases, the DEP retains its rights in
    state court.
  9
    When the DEP pursues injunctive relief and damages judicially,
10  penalties must be part of the court action, not a separate
    administrative penalty.
11
    The CS provides that a person who timely files a petition
12  challenging a notice of violation is to be known as the
    "respondent."
13
    The CS clarifies that ch. 120, F.S., applies to any actions
14  seeking administrative penalties.

15  The schedule of administrative penalties pursuant to s.
    403.121(3), F.S., has been changed as follows:
16
    1.    Failure to obtain a clearance letter prior to placing a
17        drinking water system into service when the system would
          not have been eligible for clearance - $3,000.
18
    2.    Failure to obtain a required wastewater permit, other
19        than a permit required for surface water discharge, -
          $1,000.
20
    3.    The penalty for an unpermitted or unauthorized discharge
21        or effluent-limitation exceedance resulting in a
          surfacewater or groundwater quality violation - $5,000.
22        Previously, the penalty was $4,000 plus $1,000 if the
          discharge was from a Type I facility.
23
    4.    Dredge and fill penalties now include penalties for the
24        unauthorized construction of a stormwater management
          system. The CS includes a $3,000 penalty for a water
25        quality violation resulting from dredging or filling
          activities, stormwater construction activities, or
26        failure of a stormwater treatment facility.

27  5.    For mangrove trimming or alteration violations, all
          penalties have been deleted except the $5,000 penalty
28        against a contractor or agent of the owner or tenant.

29  6.    Solid waste penalties have been revised to reduce the
          penalty for failure to construct or maintain a required
30        stormwater management system from $3,000 to $2,000.

31  7.    For storage tank system and petroleum discharge or
          release violations, a new violation for failure to
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  1        timely investigate a suspected release or maintain
          required release detection is created, with a $2,000
  2        penalty.

  3  The schedule of administrative penalties to be assessed
    pursuant to s. 403.121(4), F.S., is changed as follows:
  4
    1.    A $2,000 penalty for violation of a specific permit
  5        condition not otherwise identified in s. 403.121, F.S.,
          or failure to plug oil, gas, injection, or disposal
  6        wells has been deleted.

  7  2.    A $1,000 penalty has been added for failure to comply
          with geophysical seismic-line-safety onsite reclamation
  8        requirements.

  9  The CS requires that the direct economic benefit gained by the
    violator from the violation be added to the scheduled
10  administrative penalty; however, the total penalty may not
    exceed $10,000 per assessment.
11
    The CS authorizes the ALJ to consider good faith efforts to
12  comply prior to or after discovery of violations, when
    considering mitigation; in such cases, penalties may be
13  reduced up to 50 percent. Also, upon an affirmative finding
    that the violation was caused by circumstances beyond the
14  reasonable control of the respondent and could not have been
    prevented by the respondent's due diligence, the ALJ may
15  reduce the penalties further.

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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