Senate Bill sb0564

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    Florida Senate - 2002                                   SB 564

    By Senator Smith





    312-321D-02

  1                      A bill to be entitled

  2         An act relating to performance-based

  3         permitting; creating s. 403.08761, F.S.;

  4         creating the "Florida Performance-Based

  5         Permitting Act"; creating s. 403.08762, F.S.;

  6         providing legislative findings and public

  7         purposes; creating s. 403.08763, F.S.;

  8         establishing the performance-based permit

  9         program; defining terms; requiring the

10         Department of Environmental Protection to

11         consider the compliance history of permit

12         applicants; providing for categories of

13         violations and factors to be considered;

14         providing for possible actions the department

15         may take relating to permits; providing for the

16         creation of forms and for submission of

17         specified information; providing for compliance

18         incentives for applicants who meet certain

19         criteria; authorizing the adoption of rules;

20         amending s. 373.413, F.S.; providing for the

21         application of s. 403.08763, F.S., to that

22         section; amending s. 403.087, F.S.; providing

23         for the department to consider the compliance

24         history of applicants for permits; amending s.

25         161.041, F.S.; providing for the application of

26         the performance based permitting program to ch.

27         161, F.S.; providing an effective date.

28

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

30

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  1         Section 1.  Section 403.08761, Florida Statutes, is

  2  created to read:

  3         403.08761  Short Title.--Sections 403.08761-403.08763

  4  may be cited as the "Florida Performance-Based Permitting

  5  Act."

  6         Section 2.  Section 403.08762, Florida Statutes, is

  7  created to read:

  8         403.08762  Legislative findings; public purpose.--

  9         (1)  The Legislature finds and declares that:

10         (a)  Permit applicants with a history of compliance

11  with the environmental laws should be eligible for longer

12  permits, short-form permit renewals, and other incentives to

13  reward and encourage such applicants.

14         (b)  Permit applicants with a history of noncompliance

15  with the environmental laws should be subject to more

16  stringent requirements, and in some cases such applicants

17  should be denied permits for an appropriate period of time.

18         (c)  Permit decision-making that considers past

19  compliance history and customizes the permit in recognition of

20  that history:

21         1.  Increases protection for the environment because it

22  encourages compliance;

23         2.  Increases protection for the environment by

24  allowing the department to focus financial and personnel

25  resources on those few in the regulated community with a

26  record of poor compliance; and

27         3.  Increases protection for the environment because it

28  allows permit applicants with a satisfactory record to better

29  focus their resources.

30         (d)  In order to maximize the benefit of a permit

31  decision-making process that recognizes an applicant's

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  1  compliance history, the evaluation of that history should be

  2  done in a more clear, consistent, and predictable manner.

  3         (2)  It is therefore declared to be the purpose of this

  4  act to:

  5         (a)  Enhance the protection of the state's natural

  6  resources by establishing and making available to the

  7  regulated community incentives to encourage compliance and to

  8  reward those who meet or exceed compliance requirements;

  9         (b)  Provide the department with clear and specific

10  authority to consider the compliance history of permit

11  applicants and those who control the applicants when

12  evaluating reasonable assurance and when designing and

13  implementing its permitting programs;

14         (c)  Clearly define the extent to which the department

15  may consider compliance history in its permitting

16  decision-making; and

17         (d)  Promote objectivity and consistency in the

18  evaluation process throughout the state by establishing

19  criteria for the review of compliance history and by defining

20  the potential permitting consequences of compliance and

21  noncompliance with the environmental laws.

22         Section 3.  Section 403.08763, Florida Statutes, is

23  created to read:

24         403.08763  Performance-based permit program.--

25         (1)  DEFINITIONS.--As used in this section, the term:

26         (a)  "Applicant" means the proposed permittee, the

27  owner, and the operator of a regulated activity seeking an

28  agency permit. If the applicant has not held an agency permit

29  during at least 4 of the 5 years preceding submission of the

30  permit application, the term also includes any person who has

31  the legal or actual authority to control the owner, operator,

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  1  or permittee. The term also includes any person requesting

  2  that a permit be transferred to that person, and, if the

  3  transferee has not held an agency permit during at least 4 of

  4  the 5 years preceding submission of the request to transfer

  5  the permit, any person who has the legal or actual authority

  6  to control the proposed transferee.

  7         (b)  "Agency" means the Department of Environmental

  8  Protection, water management districts acting pursuant to part

  9  IV of chapter 373, and local governments acting under a

10  delegation agreement with the department or a water management

11  district.

12         (c)  "Agency statutes" means chapter 161, part IV of

13  chapter 373, chapter 376, and chapter 403.

14         (d)  "Environmental statutes" means any state or

15  federal statute that regulates activities for the purpose of

16  protecting the environment, but does not include any statute

17  that regulates activities only for purposes of zoning, growth

18  management, or land-use.

19         (e)  "Reasonable assurance" means that there is a

20  substantial likelihood, although not an absolute guarantee,

21  that the proposed activity and applicant will comply with

22  agency rules, statutes, orders, and permit conditions.

23         (f)  "Regulated activity" means any activity, including

24  the construction or operation of a facility, installation,

25  system, or project, for which a permit or certification is

26  required under an agency statute.

27         (g)  "Site" means a single parcel or multiple

28  contiguous or adjacent parcels of land on which the applicant

29  proposes to conduct, or has conducted, a regulated activity

30  and includes any other contiguous parcels of land owned or

31  controlled by the applicant. A site is a "new site" if the

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  1  applicant has not held an agency permit for a regulated

  2  activity at that location for at least 4 of the 5 years

  3  preceding submission of an application.

  4         (2)  PERIOD OF REVIEW.--One factor in determining

  5  whether a permit applicant has provided reasonable assurance

  6  of compliance with applicable statutes and agency rules is the

  7  compliance history of the applicant. The agency shall consider

  8  the compliance history of the applicant during the 5 years

  9  preceding submission of a complete application to the agency.

10         (3)  CATEGORIES OF VIOLATIONS.--Violations of agency

11  rules and statutes and offenses under applicable criminal

12  statutes are categorized as follows:

13         (a)  Category A.--

14         1.  Felony criminal violations.

15         a.  The applicant has been convicted of, entered a plea

16  of guilty or nolo contendere to, or had adjudication withheld

17  for a felony criminal violation of any environmental statute

18  in the United States.

19         b.  For purposes of this subparagraph, if the applicant

20  is a business entity, violations include violations committed

21  by those officers, directors, trustees, partners, or employees

22  of the applicant who have legal or actual operational control

23  over the regulated activity for which a permit is being

24  sought.

25         2.  Harm to humans. The applicant is responsible for a

26  violation of an agency statute, rule, consent order, final

27  order, final judgment, or agreement that resulted in

28  significant physical harm or injury to one or more human

29  beings.

30         (b)  Category B.--

31         1.  Other criminal violations.

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  1         a.  The applicant has been convicted of, entered a plea

  2  of guilty or nolo contendere to, or had adjudication withheld

  3  for a misdemeanor criminal violation of any environmental

  4  statute in this state; or

  5         b.  The applicant has been convicted of, entered a plea

  6  of guilty or nolo contendere to, or had adjudication withheld

  7  for a crime of dishonesty in this state which involves or is

  8  related to the operation of a facility or activity requiring

  9  an agency permit. Such crimes may include theft, larceny,

10  dealing in stolen property, receiving stolen property,

11  burglary, embezzlement, obtaining property by false pretenses,

12  possession of altered property, or any fraudulent or dishonest

13  dealing.

14

15  For purposes of this subparagraph, if the applicant is a

16  business entity, violations include violations committed by

17  those officers, directors, trustees, partners, or managerial

18  employees of the applicant who have legal or actual

19  operational control over the regulated activity for which a

20  permit is being sought.

21         2.  Circumvention or falsification.

22         a.  The applicant is responsible for a violation

23  involving the knowing circumvention of pollution-control

24  equipment required by agency rules, statutes, orders, or

25  permit conditions;

26         b.  The applicant is responsible for a violation

27  involving the knowing failure to install, maintain, or operate

28  any monitoring device or method required to be maintained by

29  agency rules, statutes, orders, or permit conditions;

30         c.  The applicant is responsible for a violation

31  involving the knowing submittal of any false statement,

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  1  representation, or certification in any application, record,

  2  report, plan, or other document filed or required to be

  3  maintained by agency rules, statutes, orders, or permit

  4  conditions; or

  5         d.  The applicant is responsible for a violation

  6  involving falsifying, tampering with, or knowingly rendering

  7  inaccurate any monitoring device or method required to be

  8  maintained by agency rules, statutes, orders, or permit

  9  conditions.

10         3.  Harm to the environment. Any violation of an agency

11  statute, rule, consent order, final order, final judgment, or

12  agreement that resulted in significant harm or injury to the

13  environment.

14         (c)  Category C.--

15         1.  The applicant is responsible for a violation of an

16  agency statute, rule, consent order, final order, agreement,

17  or final judgment involving the agency which resulted in a

18  significant threat to human health or the environment.

19         2.  The applicant is responsible for a violation of an

20  agency statute, rule, consent order, final order, agreement,

21  or final judgment involving the agency which is not addressed

22  in subparagraph 1., which has not been resolved, and which the

23  applicant has not in good faith participated in a process to

24  resolve through a consent order or other agreement with the

25  agency.

26         (d)  Category D; Pattern of noncompliance.--Two or more

27  violations, on at least two separate occasions, of agency

28  statutes, rules, consent orders, final orders, agreements, or

29  final judgements involving the agency which establish a

30  pattern of noncompliance indicating that the applicant is

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  1  unwilling or unable to comply with applicable agency standards

  2  and criteria.

  3         (4)  RELEVANT COMPLIANCE HISTORY.--In evaluating an

  4  applicant's compliance history, the agency shall consider only

  5  those violations categorized in subsection (3), and only in

  6  accordance with the following criteria:

  7         (a)  If the application is for the renewal of an agency

  8  permit, or for a new permit at any site other than a new site,

  9  the agency shall consider the applicant's violations at that

10  site, and shall also consider any of the applicant's Category

11  A crimes at any site in the country.

12         (b)  If the application is for a new permit at a new

13  site, the agency shall consider the applicant's violations at

14  any site in this state.

15         (c)  If the application is for an operation permit for

16  a regulated activity for which a construction permit was

17  issued during the 5 years preceding the application, and if

18  the agency evaluated the compliance history of the applicant

19  during the review of the construction permit, the agency shall

20  not reevaluate that compliance history, unless the entities

21  whose histories were originally reviewed were responsible for

22  additional violations occurring after the agency completed the

23  construction permit review.

24         (d)  This section does not apply to general permits

25  issued in accordance with ss. 373.414 and 403.814, and only

26  subsections (12) through (15) apply to applications for

27  closure and post-closure permits. However, the agency may

28  continue to use its authority under s. 403.087 to consider the

29  compliance history of those seeking to use a general permit.

30         (5)  PROVING-UP CIVIL VIOLATIONS.--The agency may

31  consider all civil violations that were committed during the

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  1  relevant review period and that resulted in the initiation of

  2  a formal enforcement action by the agency. However, if a civil

  3  violation has not been resolved or adjudicated before the time

  4  the agency takes final action on the application, the civil

  5  violation must be established by a preponderance of the

  6  evidence in any subsequent proceeding challenging the agency's

  7  proposed agency action. In all such proceedings:

  8         (a)  The permit applicant has the initial burden in any

  9  proceeding challenging the proposed agency action of

10  establishing a prima facie case that it has provided

11  reasonable assurance and is entitled to the permit;

12         (b)  The agency, or any party seeking to establish

13  violations under this subsection, then has the burden of

14  presenting by a preponderance of the evidence a prima facie

15  case supporting the violations it contends were the

16  responsibility of the applicant, as well as the pattern of

17  noncompliance if a Category D violation is alleged; and

18         (c)  The permit applicant retains the ultimate burden

19  of persuasion that it has provided reasonable assurance with

20  respect to all issues.

21         (6)  FACTORS TO CONSIDER.--If the agency determines

22  that the applicant is responsible for any Category A, B, or D

23  violations, the agency shall initiate a further review. If the

24  agency determines that the applicant is responsible for any

25  Category C violations, the agency may initiate a further

26  review. The following factors must be considered and weighed

27  in order to evaluate such violations in the context of the

28  applicant's overall compliance history, and to determine

29  whether the applicant has provided reasonable assurance of

30  future compliance with agency rules and statutes:

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  1         (a)  The number of violations or crimes and the

  2  seriousness of such violations or crimes;

  3         (b)  The number of other similar facilities controlled

  4  by the applicant;

  5         (c)  The number and complexity of permits held by the

  6  applicant;

  7         (d)  Whether the violations or crimes involved

  8  regulatory programs that are the same as, or similar to, the

  9  regulatory program from which the permit is being requested;

10         (e)  Whether the violations or crimes involved

11  activities that are the same as, similar to, or related to the

12  regulated activity for which a permit is being requested;

13         (f)  Whether the applicant has resolved, or in good

14  faith participated in a process to resolve, all previous

15  violations by the applicant; and

16         (g)  Whether the applicant has developed an

17  environmental management system that complies with the

18  requirements of subsection (10).

19         (7)  POSSIBLE ACTIONS.--After considering the

20  applicant's compliance history, including any mitigating

21  factors, the agency may in its discretion take one or more of

22  the following actions:

23         (a)  Issue a permit with special conditions designed to

24  minimize the likelihood of similar future violations.

25         (b)  Issue a permit with an accompanying administrative

26  order. The administrative order may include a schedule for

27  coming into compliance with agency rules, statutes, orders, or

28  permit conditions; additional operating, training, or auditing

29  procedures necessary to assure compliance; specified penalties

30  for future noncompliance; and financial assurance in the form

31  of a cash deposit, bond, insurance policy, or letter of credit

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  1  sufficient to cover damages or cleanup costs that could

  2  forseeably result from future violations.

  3         (c)  Require independent compliance audits or programs

  4  at the regulated activity at the applicant's cost.

  5         (d)  Issue a permit with a duration of less than 5

  6  years, if not prohibited by federal law.

  7         (e)  Issue a permit with more frequent reporting

  8  requirements than are generally required by rule or practice.

  9         (f)  Issue a permit requiring financial assurance

10  designed to guarantee performance.

11         (8)  PERMIT DENIAL.--The agency may deny a permit

12  application only if the agency determines that the provisions

13  of subsection (7) would not reasonably be expected to result

14  in future compliance, and then the agency may, in its

15  discretion, deny a permit application in accordance with the

16  following:

17         (a)  If the applicant is responsible for a Category A

18  violation, the agency may deny the permit application, and the

19  applicant is not entitled to apply for a permit for that

20  regulated activity for a period of 1 year from the time a

21  final order denying the permit has been entered.

22         (b)  If the applicant is responsible for two or more

23  Category B violations, the agency may deny the permit

24  application, and the applicant is not entitled to apply for a

25  permit for that regulated activity for a period of 6 months

26  from the time a final order denying the permit has been

27  entered.

28         (c)  If the applicant is responsible for a Category D

29  violation, the agency may issue a permit, not to exceed 1 year

30  in duration, which may also include any of those actions

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  1  provided for in subsection (7). The following criteria will

  2  apply to any such permit:

  3         1.  The agency shall include a statement in its notice

  4  of intended agency action explaining that the agency has

  5  determined that the applicant has a pattern of noncompliance

  6  and that this determination has formed the basis for taking

  7  any of those actions provided for in subsection (7). The

  8  agency shall also include a notification that an application

  9  to renew the permit could be denied if the pattern of

10  noncompliance continues.

11         2.  If, at the time for permit renewal, the agency

12  determines that the applicant has demonstrated a continuing

13  pattern of noncompliance, the agency shall deny the permit

14  application, and the applicant is not entitled to apply for a

15  permit for that regulated activity for a period of 6 months

16  from the time a final order denying the permit has been

17  entered.

18         (d)  If the agency denies a permit application in

19  accordance with this subsection for a permit that includes

20  corrective-action requirements, the agency may deny that

21  portion of the permit authorizing operation, and may issue a

22  permit that contains only the corrective-action requirements

23  and conditions.

24         (9)  MULTIPLE DENIALS.--If the applicant has twice been

25  denied a permit in accordance with subsection (8) during the 5

26  years preceding submission of a complete application to the

27  agency, the applicant may not apply for a permit for any

28  regulated activity in this state.

29         (10)  ENVIRONMENTAL MANAGEMENT SYSTEMS.--An applicant

30  may propose an environmental management system as part of a

31  permit application or modification. For the purposes of

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  1  paragraph (6)(f) and (12)(b), such a program must be approved

  2  by the department and be included as a specific permit

  3  condition. An approved environmental management system must:

  4         (a)  Be designed to eliminate or reduce the likelihood

  5  of reoccurrence of violations;

  6         (b)  Establish compliance standards and procedures to

  7  be followed by the applicant's employees and agents which are

  8  reasonably capable of reducing the prospect of violations;

  9         (c)  Provide that specific individuals who have

10  substantial control over the applicant or who have a

11  substantial role in applicant's policymaking have been

12  assigned overall responsibility to oversee compliance with

13  such standards and procedures;

14         (d)  Provide that the applicant use due care not to

15  delegate substantial discretionary authority to individuals

16  whom the applicant knows, or should have known through the

17  exercise of due diligence, engaged in violations;

18         (e)  Be communicated effectively to all employees and

19  independent contractors by requiring routine participation in

20  training programs and by disseminating written or electronic

21  information that explains program requirements in a practical

22  manner;

23         (f)  Establish monitoring and auditing systems

24  reasonably designed to detect environmental violations by the

25  applicant's employees and independent contractors;

26         (g)  Establish a readily available reporting system

27  whereby employees and independent contractors may report

28  environmental violations by others within the organization

29  without fear of retribution; and

30         (h)  Be consistently enforced through appropriate

31  disciplinary and incentive mechanisms, including, as

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  1  appropriate, discipline of individuals responsible for the

  2  failure to detect an environmental violation.

  3         (11)  FORM.--The agency shall establish a form, by

  4  rule, to be used for the purpose of implementing this section.

  5  Each permit application subject to this section that is

  6  submitted to the agency must be accompanied by this completed

  7  form in order to be considered complete. During the permit

  8  review process, the form shall be updated by the appliant to

  9  reflect any changes until the application is determined to be

10  complete. The form must include the following:

11         (a)  A section requiring each applicant to report the

12  relevant criminal history of the applicant, including the

13  nature of the offense, the date of the offense, the court

14  having jurisdiction in the case, the date of conviction or

15  other disposition, and the disposition of the offense; and

16         (b)  A section requiring each applicant who has not

17  held an agency permit during the 5 years preceding submission

18  of the permit application to identify those persons having

19  legal or actual authority to control the owner, operator, or

20  permittee. The form shall specify in detail what information

21  must be reported.

22         (12)  COMPLIANCE INCENTIVES.--Any applicant who meets

23  the criteria set forth in this subsection is eligible for the

24  following incentives, unless otherwise prohibited by state or

25  federal statute, agency rule, or federal regulation, and

26  provided that the applicant meets all other applicable

27  criteria for the issuance of a permit. In order to obtain a

28  benefit, the applicant must affirmatively request it as part

29  of the permit application.

30         (a)  Tier 1. An applicant is eligible for the following

31  incentives if the applicant conducted the regulated activity

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  1  for at least 4 of the past 5 years or, if it is a new

  2  regulated activity, the applicant conducted a similar

  3  regulated activity under an agency permit for at least 4 of

  4  the past 5 years, and the applicant has not been responsible

  5  for any Category A, B, C, or D violations.

  6         1.  Extended permit. A renewal of an operation or

  7  closure permit, which may include expansions or modifications

  8  involving construction, shall be issued for a period of 5

  9  years, and shall be automatically renewed for an additional 5

10  years without agency action under the following conditions:

11         a.  At least 180 days before the end of the first

12  5-year period, the applicant shall complete and submit the

13  prescribed form to the agency. The applicant shall

14  concurrently publish notice of the application in a newspaper

15  of general circulation in the county in which the regulated

16  activity is conducted, and inform the public that the agency

17  will accept comments on the compliance history of the

18  applicant for a period of 30 days after the notice is

19  published. Within 45 days after publication, the agency shall

20  conduct a review of the compliance history of the applicant,

21  including consideration of any timely public comments, and

22  shall determine whether the applicant continues to meet the

23  criteria set forth in paragraph (a).

24         b.  If the applicant no longer meets the criteria set

25  forth in this paragraph, the agency shall so notify the

26  applicant, and shall require the applicant to submit a

27  permit-renewal application in accordance with applicable

28  agency statutes and rules. A renewal application submitted

29  within 60 days after such notification is considered a timely

30  application for renewal for purposes of s. 120.60.

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  1         c.  If the applicant meets the criteria set forth in

  2  this paragraph, the agency may notify the applicant, but need

  3  take no further agency action for the renewal to be effective.

  4         d.  If the applicant seeks to transfer the extended

  5  permit to another entity, the transferee shall complete and

  6  submit the prescribed form as part of the transfer

  7  application. If the agency determines that the transferee has

  8  met the criteria set forth in this paragraph over the previous

  9  5 years, and if the transfer complies with all other

10  applicable criteria, the agency shall agree to the transfer of

11  the extended permit.

12         2.  Short-form renewals. Renewal of permits not

13  involving substantial construction or expansion may be made

14  upon a shortened application form specifying only the changes

15  in the regulated activity or a certification by the permittee

16  that no changes in the regulated activity are proposed, if

17  that is the case. Applicants for short-form renewals shall

18  complete and submit the prescribed compliance form with the

19  application and will remain subject to the compliance history

20  review of this section. All other procedural requirements for

21  renewal applications remain unchanged. This subparagraph

22  supplements any expedited review processes found in agency

23  rules.

24         (b)  Tier 2. An applicant is eligible for the following

25  incentives if the applicant meets the same requirements as for

26  Tier 1 described in paragraph (a) and has implemented an

27  environmental management system as provided in subsection (10)

28  which results in achieving performance objectives that exceed

29  the agency's minimum compliance standards:

30         1.  Extended permits and short-form renewals as

31  described above. However, if the applicant has conducted a

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  1  regulated activity at a site for at least 5 years, the

  2  applicant is eligible for a 10-year permit at that site.

  3         2.  Fewer routine inspections than other regulated

  4  activities similarly situated.

  5         3.  Expedited review of requests for permit

  6  modifications.

  7         4.  Other incentives as may be provided by the agency,

  8  which may include recognition by the secretary or

  9  program-specific incentives.

10         (13)  RULEMAKING.--In addition to the rulemaking

11  necessary to adopt the form identified in subsection (10), the

12  agency may adopt rules to administer this section. Any such

13  rules adopted by the department apply to all agencies as

14  defined in this section, unless an agency has adopted its own

15  rule that is substantially identical to the agency's rule.

16         (14)  NOTIFICATION.--The agency is encouraged to work

17  with permittees and permit applicants before taking any of the

18  actions authorized under this section, in order to encourage

19  compliance and avoid overly burdensome consequences of

20  noncompliance. In each case in which the agency initiates a

21  formal enforcement action, it shall clearly and specifically:

22         (a)  Inform the alleged violator of the provisions of

23  this section;

24         (b)  Put the alleged violator on notice of the

25  potential consequences of continuing noncompliance; and

26         (c)  Inform the alleged violator if the agency has

27  determined that a Category A, B, or C violation has occurred.

28         (15)  EXISTING AUTHORITY.--This section may not be

29  construed to limit the agency's existing authority to consider

30  factors other than an applicant's compliance history, such as

31  the technical merits of the proposed project or the

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    Florida Senate - 2002                                   SB 564
    312-321D-02




  1  applicant's financial and human resources, when determining

  2  whether the applicant has provided the reasonable assurance

  3  necessary to receive the requested permit. Nor may anything in

  4  this section be construed to limit the agency's existing

  5  authority to impose special conditions in any permit, or to

  6  revoke any permit.

  7         (16)  APPLICABILITY.--This section, except for

  8  subsection (12), shall take effect July 1, 2002, although the

  9  agency may continue to evaluate compliance history based upon

10  other provisions of law until July 1, 2005. After July 1,

11  2005, this section shall supersede all other provisions of law

12  authorizing the agency to consider the compliance history of

13  applicants for permits, other than general permits. Subsection

14  (12) takes effect July 1, 2005.

15         Section 4.  Subsection (5) of section 403.087, Florida

16  Statutes, is amended to read:

17         403.087  Permits; general issuance; denial; revocation;

18  prohibition; penalty.--

19         (5)  The department shall issue permits to construct,

20  operate, maintain, expand, or modify an installation which may

21  reasonably be expected to be a source of pollution only if the

22  applicant affirmatively provides the department with

23  reasonable assurance that the proposed activity and applicant

24  will comply with department rules, statutes, orders, and

25  permit conditions, when it determines that the installation is

26  provided or equipped with pollution control facilities that

27  will abate or prevent pollution to the degree that will comply

28  with the standards or rules adopted by the department, except

29  as provided in s. 403.088 or s. 403.0872. The compliance

30  history of the applicant shall be one factor in determining

31  whether the applicant has provided such reasonable assurance.

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    Florida Senate - 2002                                   SB 564
    312-321D-02




  1  However, separate construction permits shall not be required

  2  for installations permitted under s. 403.0885, except that the

  3  department may require an owner or operator proposing to

  4  construct, expand, or modify such an installation to submit

  5  for department review, as part of application for permit or

  6  permit modification, engineering plans, preliminary design

  7  reports, or other information 90 days prior to commencing

  8  construction.  The department may also require the engineer of

  9  record or another registered professional engineer, within 30

10  days after construction is complete, to certify that the

11  construction was completed in accordance with the plans

12  submitted to the department, noting minor deviations which

13  were necessary because of site-specific conditions.

14         Section 5.  Subsection (6) is added to section 373.413,

15  Florida Statutes, to read:

16         373.413  Permits for construction or alteration.--

17         (6)  The provisions of s. 403.08763, the

18  Performance-Based Permitting Program, applies to all permits

19  issued under this section other than general permits.

20         Section 6.  Subsection (5) is added to section 161.041,

21  Florida Statutes, to read:

22         161.041  Permits required.--

23         (5)  The provisions of s. 403.08763, the Performance

24  Based Permitting Program, shall apply to all permits issued

25  under this chapter.

26         Section 7.  This act shall take effect July 1, 2002.

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    Florida Senate - 2002                                   SB 564
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  2                          SENATE SUMMARY

  3    Creates the "Florida Performance-Based Permitting Act."
      Provides legislative findings and public purpose.
  4    Requires the Department of Environmental Protection to
      consider and review the compliance history of applicants
  5    seeking review or modification of a permit and applicants
      seeking a permit for a regulated activity. Creates
  6    categories of violations. Provides factors and criteria
      to be considered in evaluating an applicant's compliance
  7    program. Provides that applicants meeting certain
      criteria are eligible for specified compliance
  8    incentives. Authorizes adoption of rules.

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