| 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 popular 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 to adopt certain rules; requiring agency |
| 11 | notification of formal enforcement actions; providing |
| 12 | notice requirements; amending ss. 161.041 and 373.413, |
| 13 | F.S.; specifying application of Incentive-based Permitting |
| 14 | Program provisions; amending s. 403.087, F.S.; revising |
| 15 | criteria for department permit issuance to conform; |
| 16 | providing an effective date. |
| 17 |
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| 18 | Be It Enacted by the Legislature of the State of Florida: |
| 19 |
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| 20 | Section 1. Section 403.0874, Florida Statutes, is created |
| 21 | to read: |
| 22 | 403.0874 Incentive-based Permitting Program.-- |
| 23 | (1) POPULAR NAME.--This section may be cited as the |
| 24 | "Florida Incentive-based Permitting Act." |
| 25 | (2) LEGISLATIVE FINDINGS; PUBLIC PURPOSE.-- |
| 26 | (a) The Legislature finds and declares that a permit |
| 27 | applicant's history of compliance with applicable permit |
| 28 | conditions and requirements and the environmental laws of this |
| 29 | state is a factor that should be considered by the department |
| 30 | when the department is considering whether to issue or reissue a |
| 31 | permit to an applicant, based upon compliance incentives under |
| 32 | this section. |
| 33 | (b) Permit applicants with a history of compliance with |
| 34 | applicable permit conditions and requirements and the |
| 35 | environmental laws of this state should be eligible for longer |
| 36 | permits, expedited permit reviews, short-form permit renewals, |
| 37 | and other incentives to reward and encourage such applicants. |
| 38 | (c) It is therefore declared to be the purpose of this |
| 39 | section to provide the department with clear and specific |
| 40 | authority to consider the compliance history of a permit |
| 41 | applicant who has applied for an incentive-based permit. |
| 42 | (3) DEFINITIONS.--For purposes of this section: |
| 43 | (a) "Agency" means the Department of Environmental |
| 44 | Protection. |
| 45 | (b) "Applicant" means the proposed permittee or |
| 46 | transferee, owner, or operator of a regulated activity seeking |
| 47 | an agency permit. |
| 48 | (c) "Environmental laws" means any state or federal law |
| 49 | that regulates activities for the purpose of protecting the |
| 50 | environment, or for the purpose of protecting the public health |
| 51 | from pollution or contaminants, but does not include any law |
| 52 | that regulates activities for the purpose of zoning, growth |
| 53 | management, or land use. The term includes, but is not limited |
| 54 | to, chapter 161, part IV of chapter 373, and chapter 403. |
| 55 | (d) "Regulated activity" means any activity, including, |
| 56 | but not limited to, the construction or operation of a facility, |
| 57 | installation, system, or project, for which a permit or |
| 58 | certification is required under an agency law. |
| 59 | (e) "Site" means a single parcel, or multiple contiguous |
| 60 | or adjacent parcels, of land on which the applicant proposes to |
| 61 | conduct, or has conducted, a regulated activity. |
| 62 | (4) COMPLIANCE INCENTIVES.--In order to obtain compliance |
| 63 | incentives, the applicant must affirmatively request such |
| 64 | incentives as part of the permit application. Unless otherwise |
| 65 | prohibited by state or federal law, agency rule, or federal |
| 66 | regulation, and provided the applicant meets all other |
| 67 | applicable criteria for the issuance of a permit, any applicant |
| 68 | who meets the criteria set forth in this subsection is entitled |
| 69 | to the following incentives: |
| 70 | (a) Level 1.-- |
| 71 | 1. An applicant shall be entitled to incentives pursuant |
| 72 | to this paragraph at a site if the applicant conducted the |
| 73 | regulated activity for at least 4 of the 5 years preceding |
| 74 | submittal of the permit application or, if the activity is a new |
| 75 | regulated activity, the applicant conducted a similar regulated |
| 76 | activity under an agency permit for at least 4 of the 5 years at |
| 77 | a different site in this state preceding submittal of the permit |
| 78 | application. However, an applicant shall not be entitled to |
| 79 | incentives under this paragraph if the applicant has a relevant |
| 80 | compliance history at the subject site that includes any knowing |
| 81 | violation that resulted in formal enforcement action and the |
| 82 | violation resulted in significant harm to human health or the |
| 83 | environment. The term "knowing" means awareness of the nature of |
| 84 | a person's acts, not awareness that such acts violate the law. |
| 85 | The term does not include conduct that is the result of an act |
| 86 | of God, mechanical failure, events beyond the control of the |
| 87 | applicant, an accident, or a mistake of fact. The term "act of |
| 88 | God," which means only an unforeseeable act exclusively |
| 89 | occasioned by the violence of nature without the interference of |
| 90 | any human agency, shall not be deemed to cause any failure to |
| 91 | comply with a permit condition or requirement. |
| 92 | 2. Level 1 incentives shall include: |
| 93 | a. Automatic renewal of permit.--A renewal of a permit |
| 94 | shall be issued for a period of 5 years and shall, after notice |
| 95 | and an opportunity for public comment, be automatically renewed |
| 96 | for one additional 5-year term without agency action unless the |
| 97 | agency determines, based on information submitted by the |
| 98 | applicant or resulting from the public comments or its own |
| 99 | records, that the applicant has committed violations during the |
| 100 | relevant review period that disqualify the applicant from |
| 101 | receiving the automatic or expedited renewal. |
| 102 | b. Expedited permit review.--The processing time following |
| 103 | receipt of a completed application shall be 45 days for the |
| 104 | issuance of the agency action. |
| 105 | c. Short-form renewals.--Renewals of permits not involving |
| 106 | substantial construction or expansion may be made upon a |
| 107 | shortened application form specifying only the changes in the |
| 108 | regulated activity or a certification by the applicant that no |
| 109 | changes in the regulated activity are proposed if that is the |
| 110 | case. Applicants for short-form renewals shall complete and |
| 111 | submit the prescribed compliance form with the application and |
| 112 | shall remain subject to the compliance history review of this |
| 113 | section. All other procedural requirements for renewal |
| 114 | applications remain unchanged. This provision shall supplement |
| 115 | any expedited review processes found in agency rules. |
| 116 | d. Rulemaking.--Within 6 months after the effective date |
| 117 | of this section, the department shall initiate rulemaking to |
| 118 | implement Level 1 incentives. The rule shall specify what |
| 119 | incentives will be made available, how applicants may qualify |
| 120 | for incentives, and how extended permits may be transferred. |
| 121 | Until an implementing rule is adopted, Level 1 incentives shall |
| 122 | not be available to permit applicants under this section. |
| 123 | (b) Level 2.-- |
| 124 | 1. An applicant shall be entitled to incentives pursuant |
| 125 | to this paragraph if the applicant meets the requirements for |
| 126 | Level 1 and the applicant takes any other actions not otherwise |
| 127 | required by law that result in: |
| 128 | a. Reductions in actual or permitted discharges or |
| 129 | emissions; |
| 130 | b. Reductions in the impacts of regulated activities on |
| 131 | public lands or natural resources; |
| 132 | c. Waste reduction or reuse; |
| 133 | d. Implementation of a voluntary environmental management |
| 134 | system; or |
| 135 | e. Other similar actions as determined by department rule. |
| 136 | 2. Level 2 incentives may include all Level 1 incentives |
| 137 | and shall also include: |
| 138 | a. Ten-year permits, provided the applicant has conducted |
| 139 | a regulated activity at the site for at least 5 years. |
| 140 | b. Fewer routine inspections than other regulated |
| 141 | activities similarly situated. |
| 142 | c. Expedited review of requests for permit modifications. |
| 143 | d. Agency recognition, program-specific incentives, or |
| 144 | certifications in lieu of renewal permits. |
| 145 | e. No more than two requests for additional information. |
| 146 | (c) Rulemaking.--Within 6 months after the effective date |
| 147 | of this section, the department shall initiate rulemaking to |
| 148 | implement Level 2 incentives. The rule shall specify what |
| 149 | incentives will be made available, how applicants may qualify |
| 150 | for incentives, and how extended permits may be transferred. |
| 151 | Until an implementing rule is adopted, Level 2 incentives shall |
| 152 | not be available to permit applicants under this section. |
| 153 | (5) NOTIFICATION.--The agency is encouraged to work with |
| 154 | permittees and permit applicants to encourage compliance and |
| 155 | avoid burdensome and expensive consequences of noncompliance. In |
| 156 | each case in which the agency initiates a formal enforcement |
| 157 | action and prior to considering incentives outlined in this |
| 158 | section, the agency shall clearly and specifically: |
| 159 | (a) Inform the alleged permittee if the provisions of this |
| 160 | section will allow for considering incentives. |
| 161 | (b) Put the alleged permittee on notice of the |
| 162 | consequences of violations and the potential consequences of |
| 163 | continuing noncompliance in relation to Level 1 or Level 2 |
| 164 | incentives. |
| 165 | Section 2. Subsection (5) is added to section 161.041, |
| 166 | Florida Statutes, to read: |
| 167 | 161.041 Permits required.-- |
| 168 | (5) The Incentive-based Permitting Program provisions of |
| 169 | s. 403.0874 shall apply to all permits issued under this |
| 170 | chapter. |
| 171 | Section 3. Subsection (6) is added to section 373.413, |
| 172 | Florida Statutes, to read: |
| 173 | 373.413 Permits for construction or alteration.-- |
| 174 | (6) The Incentive-based Permitting Program provisions of |
| 175 | s. 403.0874 shall apply to permits issued under this section. |
| 176 | Section 4. Subsection (7) of section 403.087, Florida |
| 177 | Statutes, is amended to read: |
| 178 | 403.087 Permits; general issuance; denial; revocation; |
| 179 | prohibition; penalty.-- |
| 180 | (7) A permit issued pursuant to this section shall not |
| 181 | become a vested right in the permittee. The department may |
| 182 | revoke any permit issued by it if it finds that the permitholder |
| 183 | knowingly: |
| 184 | (a) Has submitted false or inaccurate information in the |
| 185 | his or her application for such permit; |
| 186 | (b) Has violated law, department orders, rules, or |
| 187 | regulations, or permit conditions directly related to such |
| 188 | permit and has refused to correct or cure such violations when |
| 189 | requested to do so; |
| 190 | (c) Has failed to submit operational reports or other |
| 191 | information required by department rule or regulation directly |
| 192 | related to such permit and has refused to correct or cure such |
| 193 | violations when requested to do so; or |
| 194 | (d) Has refused lawful inspection under s. 403.091 at the |
| 195 | facility authorized by such permit. |
| 196 | Section 5. This act shall take effect upon becoming a law. |