HB 0319 2004
1	A bill to be entitled
2	An act relating to the Florida Incentive-based Permitting
3	Act; creating s. 403.0874, F.S.; providing a section name;
4	providing legislative findings; providing purposes;
5	providing definitions; providing for an Incentive-based
6	Permitting Program; providing compliance incentives for
7	certain environmental permitting activities; providing
8	requirements and limitations; providing for administration
9	by the Department of Environmental Protection; requiring
10	the Department of Environmental Protection to adopt
11	certain rules; requiring agency notification of formal
12	enforcement actions; providing notice requirements;
13	amending ss. 161.041 and 373.413, F.S.; specifying
14	application of Incentive-based Permitting Program
15	provisions; amending s. 403.087, F.S.; revising criteria
16	for department permit issuance to conform; providing an
17	effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1. Section 403.0874, Florida Statutes, is created
22	to read:
23	403.0874 Incentive-based Permitting Program.--
24	(1) Popular name.--This section is the “Florida Incentive-
25	based Permitting Act.”
26	(2) LEGISLATIVE FINDINGS; PUBLIC PURPOSE.--
27	(a) The Legislature finds and declares that a permit
28	applicant’s history of compliance with applicable permit
29	conditions and requirements and the environmental laws of this
30	state is a factor that should be considered by the department
31	when the department is considering whether to issue or reissue a
32	permit to an applicant, based upon compliance incentives under
33	this section.
34	(b) Permit applicants with a history of compliance with
35	applicable permit conditions and requirements and the
36	environmental laws of this state should be eligible for longer
37	permits, expedited permit reviews, short-form permit renewals,
38	and other incentives to reward and encourage such applicants.
39	(c) It is therefore declared to be the purpose of this act
40	to provide the department with clear and specific authority to
41	consider the compliance history of a permit applicant who has
42	applied for an incentive-based permit.
43	(3) DEFINITIONS.--For purposes of this section:
44	(a) “Applicant” means the proposed permittee or
45	transferee, owner, or operator of a regulated activity seeking
46	an agency permit.
47	(b) “Agency” means the Department of Environmental
48	Protection.
49	(c) "Environmental laws" means any state or federal law
50	that regulates activities for the purpose of protecting the
51	environment, or for the purpose of protecting the public health
52	from pollution or contaminants, but does not include any law
53	that regulates activities for the purpose of zoning, growth
54	management, or land use. The term includes, but is not limited
55	to, chapter 161, part IV of chapter 373, and chapter 403.
56	(d) "Regulated activity" means any activity, including,
57	but not limited to, the construction or operation of a facility,
58	installation, system, or project, for which a permit or
59	certification is required under an agency law.
60	(e) “Site” means a single parcel, or multiple contiguous
61	or adjacent parcels, of land on which the applicant proposes to
62	conduct, or has conducted, a regulated activity.
63	(4) COMPLIANCE INCENTIVES.--In order to obtain compliance
64	incentives, the applicant must affirmatively request such
65	incentives as part of the permit application. Unless otherwise
66	prohibited by state or federal law, agency rule, or federal
67	regulation, and provided the applicant meets all other
68	applicable criteria for the issuance of a permit, any applicant
69	who meets the criteria set forth in this subsection is entitled
70	to the following incentives:
71	(a) Level 1.--
72	1. An applicant shall be entitled to incentives pursuant
73	to this paragraph at a site if the applicant conducted the
74	regulated activity for at least 4 of the 5 years preceding
75	submittal of the permit application or, if the activity is a new
76	regulated activity, the applicant conducted a similar regulated
77	activity under an agency permit for at least 4 of the 5 years at
78	a different site in this state preceding submittal of the permit
79	application. However, an applicant shall not be entitled to
80	incentives under this paragraph if the applicant has a relevant
81	compliance history at the subject site that includes any knowing
82	violation that resulted in formal enforcement action and the
83	violation resulted in significant harm to human health or the
84	environment. The term “knowing” means awareness of the nature of
85	a person’s acts, not awareness that such acts violate the law.
86	The term does not include conduct that is the result of an act
87	of God, mechanical failure, events beyond the control of the
88	applicant, an accident or a mistake of fact. The term “act of
89	God,” which means only an unforeseeable act exclusively
90	occasioned by the violence of nature without the interference of
91	any human agency, shall not be deemed to cause any failure to
92	comply with a permit condition or requirement.
93	2. Level 1 incentives shall include:
94	a. Automatic renewal of permit.--A renewal of an operation
95	or closure permit shall be issued for a period of 5 years and
96	shall, after notice and an opportunity for public comment, be
97	automatically renewed for one additional 5-year term without
98	agency action unless the agency determines, based on information
99	submitted by the applicant or resulting from the public comments
100	or its own records, that the applicant has committed violations
101	during the relevant review period that disqualify the applicant
102	from receiving the automatic or expedited renewal.
103	b. Expedited permit review.--The processing time following
104	receipt of a completed application shall be 45 days for the
105	issuance of the agency action.
106	c. Short-form renewals.--Renewals of operation or closure
107	permits not involving substantial construction or expansion may
108	be made upon a shortened application form specifying only the
109	changes in the regulated activity or a certification by the
110	applicant that no changes in the regulated activity are proposed
111	if that is the case. Applicants for short-form renewals shall
112	complete and submit the prescribed compliance form with the
113	application and shall remain subject to the compliance history
114	review of this section. All other procedural requirements for
115	renewal applications remain unchanged. This provision shall
116	supplement any expedited review processes found in agency rules.
117	(b) Level 2.--
118	1. An applicant shall be entitled to incentives pursuant
119	to this paragraph if the applicant meets the requirements for
120	Level 1 and the applicant takes any other actions not otherwise
121	required by law that result in:
122	a. Reductions in actual or permitted discharges or
123	emissions;
124	b. Reductions in the impacts of regulated activities on
125	public lands or natural resources;
126	c. Waste reduction or reuse;
127	d. Implementation of a voluntary environmental management
128	system; or
129	e. Other similar actions as determined by department rule.
130	2. Level 2 incentives may include all Level 1 incentives
131	and shall also include:
132	a. Ten-year permits, provided the applicant has conducted
133	a regulated activity at the site for at least 5 years.
134	b. Fewer routine inspections than other regulated
135	activities similarly situated.
136	c. Expedited review of requests for permit modifications.
137	d. Agency recognition, program-specific incentives, or
138	certifications in lieu of renewal permits.
139	e. No more than two requests for additional information.
140	(c) Rulemaking.--Within 6 months after the effective date
141	of this act, the department shall initiate rulemaking to
142	implement Level 2 incentives. The rule shall specify what
143	incentives will be made available, how applicants may qualify
144	for incentives, how extended permits may be transferred. Until
145	an implementing rule is adopted, Level 2 incentives shall not be
146	available to permit applicants under this act.
147	(5) NOTIFICATION.--The agency is encouraged to work with
148	permittees and permit applicants to encourage compliance and
149	avoid burdensome and expensive consequences of noncompliance. In
150	each case in which the agency initiates a formal enforcement
151	action and prior to considering incentives outlined in this
152	section, the agency shall clearly and specifically:
153	(a) Inform the alleged permittee if the provisions of this
154	section will allow for considering incentives.
155	(b) Put the alleged permittee on notice of the
156	consequences of violations and the potential consequences of
157	continuing noncompliance in relation to Level 1 or Level 2
158	incentives.
159	Section 2. Subsection (5) is added to section 161.041,
160	Florida Statutes, to read:
161	161.041 Permits required.--
162	(5) The Incentive-based Permitting Program provisions of
163	s. 403.0874 shall apply to all permits issued under this
164	chapter.
165	Section 3. Subsection (6) is added to section 373.413,
166	Florida Statutes, to read:
167	373.413 Permits for construction or alteration.--
168	(6) The Incentive-based Permitting Program provisions of
169	s. 403.0874 shall apply to individual and conceptual permits
170	issued under this section.
171	Section 4. Subsection (7) of section 403.087, Florida
172	Statutes, is amended to read:
173	403.087 Permits; general issuance; denial; revocation;
174	prohibition; penalty.--
175	(7) A permit issued pursuant to this section shall not
176	become a vested right in the permittee. The department may
177	revoke any permit issued by it if it finds that the permitholder
178	knowingly:
179	(a) Has submitted false or inaccurate information in the
180	his or her application for such permit;
181	(b) Has violated law, department orders, rules, or
182	regulations, or permit conditions directly related to such
183	permit and has refused to correct or cure such violations when
184	requested to do so;
185	(c) Has failed to submit operational reports or other
186	information required by department rule or regulation directly
187	related to such permit and has refused to correct or cure such
188	violations when requested to do so; or
189	(d) Has refused lawful inspection under s. 403.091 at the
190	facility authorized by such permit.
191	Section 5. This act shall take effect upon becoming a law.