Senate Bill sb2128

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    Florida Senate - 2004                                  SB 2128

    By Senator Argenziano





    3-1733-04                                           See HB 319

  1                      A bill to be entitled

  2         An act relating to the Florida Incentive-based

  3         Permitting Act; creating s. 403.0874, F.S.;

  4         providing a section name; providing legislative

  5         findings; providing purposes; providing

  6         definitions; providing for an Incentive-based

  7         Permitting Program; providing compliance

  8         incentives for certain environmental permitting

  9         activities; providing requirements and

10         limitations; providing for administration by

11         the Department of Environmental Protection;

12         requiring the Department of Environmental

13         Protection to adopt certain rules; requiring

14         agency notification of formal enforcement

15         actions; providing notice requirements;

16         amending ss. 161.041 and 373.413, F.S.;

17         specifying application of Incentive-based

18         Permitting Program provisions; amending s.

19         403.087, F.S.; revising criteria for department

20         permit issuance to conform; providing an

21         effective date.

22  

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

24  

25         Section 1.  Section 403.0874, Florida Statutes, is

26  created to read:

27         403.0874  Incentive-based Permitting Program.--

28         (1)  Popular name.--This section is the "Florida

29  Incentive-based Permitting Act."

30         (2)  LEGISLATIVE FINDINGS; PUBLIC PURPOSE.--

31  

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1         (a)  The Legislature finds and declares that a permit

 2  applicant's history of compliance with applicable permit

 3  conditions and requirements and the environmental laws of this

 4  state is a factor that should be considered by the department

 5  when the department is considering whether to issue or reissue

 6  a permit to an applicant, based upon compliance incentives

 7  under this section.

 8         (b)  Permit applicants with a history of compliance

 9  with applicable permit conditions and requirements and the

10  environmental laws of this state should be eligible for longer

11  permits, expedited permit reviews, short-form permit renewals,

12  and other incentives to reward and encourage such applicants.

13         (c)  It is therefore declared to be the purpose of this

14  act to provide the department with clear and specific

15  authority to consider the compliance history of a permit

16  applicant who has applied for an incentive-based permit.

17         (3)  DEFINITIONS.--For purposes of this section:

18         (a)  "Applicant" means the proposed permittee or

19  transferee, owner, or operator of a regulated activity seeking

20  an agency permit.

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

22  Protection.

23         (c)  "Environmental laws" means any state or federal

24  law that regulates activities for the purpose of protecting

25  the environment, or for the purpose of protecting the public

26  health from pollution or contaminants, but does not include

27  any law that regulates activities for the purpose of zoning,

28  growth management, or land use. The term includes, but is not

29  limited to, chapter 161, part IV of chapter 373, and chapter

30  403.

31  

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1         (d)  "Regulated activity" means any activity,

 2  including, but not limited to, the construction or operation

 3  of a facility, installation, system, or project, for which a

 4  permit or certification is required under an agency law.

 5         (e)  "Site" means a single parcel, or multiple

 6  contiguous or adjacent parcels, of land on which the applicant

 7  proposes to conduct, or has conducted, a regulated activity.

 8         (4)  COMPLIANCE INCENTIVES.--In order to obtain

 9  compliance incentives, the applicant must affirmatively

10  request such incentives as part of the permit application.

11  Unless otherwise prohibited by state or federal law, agency

12  rule, or federal regulation, and provided the applicant meets

13  all other applicable criteria for the issuance of a permit,

14  any applicant who meets the criteria set forth in this

15  subsection is entitled to the following incentives:

16         (a)  Level 1.--

17         1.  An applicant shall be entitled to incentives

18  pursuant to this paragraph at a site if the applicant

19  conducted the regulated activity for at least 4 of the 5 years

20  preceding submittal of the permit application or, if the

21  activity is a new regulated activity, the applicant conducted

22  a similar regulated activity under an agency permit for at

23  least 4 of the 5 years at a different site in this state

24  preceding submittal of the permit application. However, an

25  applicant shall not be entitled to incentives under this

26  paragraph if the applicant has a relevant compliance history

27  at the subject site that includes any knowing violation that

28  resulted in formal enforcement action and the violation

29  resulted in significant harm to human health or the

30  environment. The term "knowing" means awareness of the nature

31  of a person's acts, not awareness that such acts violate the

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1  law. The term does not include conduct that is the result of

 2  an act of God, mechanical failure, events beyond the control

 3  of the applicant, an accident or a mistake of fact. The term

 4  "act of God," which means only an unforeseeable act

 5  exclusively occasioned by the violence of nature without the

 6  interference of any human agency, shall not be deemed to cause

 7  any failure to comply with a permit condition or requirement.

 8         2.  Level 1 incentives shall include:

 9         a.  Automatic renewal of permit.--A renewal of an

10  operation or closure permit shall be issued for a period of 5

11  years and shall, after notice and an opportunity for public

12  comment, be automatically renewed for one additional 5-year

13  term without agency action unless the agency determines, based

14  on information submitted by the applicant or resulting from

15  the public comments or its own records, that the applicant has

16  committed violations during the relevant review period that

17  disqualify the applicant from receiving the automatic or

18  expedited renewal.

19         b.  Expedited permit review.--The processing time

20  following receipt of a completed application shall be 45 days

21  for the issuance of the agency action.

22         c.  Short-form renewals.--Renewals of operation or

23  closure permits not involving substantial construction or

24  expansion may be made upon a shortened application form

25  specifying only the changes in the regulated activity or a

26  certification by the applicant that no changes in the

27  regulated activity are proposed if that is the case.

28  Applicants for short-form renewals shall complete and submit

29  the prescribed compliance form with the application and shall

30  remain subject to the compliance history review of this

31  section. All other procedural requirements for renewal

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1  applications remain unchanged. This provision shall supplement

 2  any expedited review processes found in agency rules.

 3         (b)  Level 2.--

 4         1.  An applicant shall be entitled to incentives

 5  pursuant to this paragraph if the applicant meets the

 6  requirements for Level 1 and the applicant takes any other

 7  actions not otherwise required by law that result in:

 8         a.  Reductions in actual or permitted discharges or

 9  emissions;

10         b.  Reductions in the impacts of regulated activities

11  on public lands or natural resources;

12         c.  Waste reduction or reuse;

13         d.  Implementation of a voluntary environmental

14  management system; or

15         e.  Other similar actions as determined by department

16  rule.

17         2.  Level 2 incentives may include all Level 1

18  incentives and shall also include:

19         a.  Ten-year permits, provided the applicant has

20  conducted a regulated activity at the site for at least 5

21  years.

22         b.  Fewer routine inspections than other regulated

23  activities similarly situated.

24         c.  Expedited review of requests for permit

25  modifications.

26         d.  Agency recognition, program-specific incentives, or

27  certifications in lieu of renewal permits.

28         e.  No more than two requests for additional

29  information.

30         (c)  Rulemaking.--Within 6 months after the effective

31  date of this act, the department shall initiate rulemaking to

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1  implement Level 2 incentives. The rule shall specify what

 2  incentives will be made available, how applicants may qualify

 3  for incentives, how extended permits may be transferred. Until

 4  an implementing rule is adopted, Level 2 incentives shall not

 5  be available to permit applicants under this act.

 6         (5)  NOTIFICATION.--The agency is encouraged to work

 7  with permittees and permit applicants to encourage compliance

 8  and avoid burdensome and expensive consequences of

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

10  formal enforcement action and prior to considering incentives

11  outlined in this section, the agency shall clearly and

12  specifically:

13         (a)  Inform the alleged permittee if the provisions of

14  this section will allow for considering incentives.

15         (b)  Put the alleged permittee on notice of the

16  consequences of violations and the potential consequences of

17  continuing noncompliance in relation to Level 1 or Level 2

18  incentives.

19         Section 2.  Subsection (5) is added to section 161.041,

20  Florida Statutes, to read:

21         161.041  Permits required.--

22         (5)  The Incentive-based Permitting Program provisions

23  of s. 403.0874 shall apply to all permits issued under this

24  chapter.

25         Section 3.  Subsection (6) is added to section 373.413,

26  Florida Statutes, to read:

27         373.413  Permits for construction or alteration.--

28         (6)  The Incentive-based Permitting Program provisions

29  of s. 403.0874 shall apply to individual and conceptual

30  permits issued under this section.

31  

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    Florida Senate - 2004                                  SB 2128
    3-1733-04                                           See HB 319




 1         Section 4.  Subsection (7) of section 403.087, Florida

 2  Statutes, is amended to read:

 3         403.087  Permits; general issuance; denial; revocation;

 4  prohibition; penalty.--

 5         (7)  A permit issued pursuant to this section shall not

 6  become a vested right in the permittee. The department may

 7  revoke any permit issued by it if it finds that the

 8  permitholder knowingly:

 9         (a)  Has submitted false or inaccurate information in

10  the his or her application for such permit;

11         (b)  Has violated law, department orders, rules, or

12  regulations, or permit conditions directly related to such

13  permit and has refused to correct or cure such violations when

14  requested to do so;

15         (c)  Has failed to submit operational reports or other

16  information required by department rule or regulation directly

17  related to such permit and has refused to correct or cure such

18  violations when requested to do so; or

19         (d)  Has refused lawful inspection under s. 403.091 at

20  the facility authorized by such permit.

21         Section 5.  This act shall take effect upon becoming a

22  law.

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