The Florida Senate

403.727  Violations; defenses, penalties, and remedies.--

(1)  It is unlawful for any hazardous waste generator, transporter, or facility owner or operator to:

(a)  Fail to comply with the provisions of this act or departmental rules or orders;

(b)  Operate without a valid permit;

(c)  Fail to comply with a permit;

(d)  Cause, authorize, create, suffer, or allow an imminent hazard to occur or continue;

(e)  Knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to the provisions of this act;

(f)  Fail to notify the department pursuant to s. 403.72(2); or

(g)  Refuse lawful inspection.

(2)  In addition to the "imminent hazard" provision, ss. 403.121 and 403.131 are available to the department to abate violations of this act.

(3)  Violations of the provisions of this act are punishable as follows:

(a)  Any person who violates the provisions of this act, the rules or orders of the department, or the conditions of a permit is liable to the state for any damages specified in s. 403.141 and for a civil penalty of not more than $50,000 for each day of continued violation, except as otherwise provided herein. The department may revoke any permit issued to the violator. In any action by the department against a small hazardous waste generator for the improper disposal of hazardous wastes, a rebuttable presumption of improper disposal shall be created if the generator was notified pursuant to s. 403.7234; the generator shall then have the burden of proving that the disposal was proper. If the generator was not so notified, the burden of proving improper disposal shall be placed upon the department.

(b)  Any person who knowingly or by exhibiting reckless indifference or gross careless disregard for human health:

1.  Transports or causes to be transported any hazardous waste, as defined in s. 403.703, to a facility which does not have a permit when such a permit is required under s. 403.707 or s. 403.722;

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

a.  At any place but a hazardous waste facility which has a current and valid permit pursuant to s. 403.722;

b.  In knowing violation of any material condition or requirement of such permit if such violation has a substantial likelihood of endangering human health, animal or plant life, or property; or

c.  In knowing violation of any material condition or requirement of any applicable rule or standard if such violation has a substantial likelihood of endangering human health, animal or plant life, or property;

3.  Makes any false statement or representation or knowingly omits material information in any hazardous waste application, label, manifest, record, report, permit, or other document required by this act;

4.  Generates, stores, treats, transports, disposes of, or otherwise handles any hazardous waste and who knowingly destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed for purposes of compliance with this act; or

5.  Transports without a manifest, or causes to be transported without a manifest, any hazardous waste required by rules adopted by the department to be accompanied by a manifest

is, upon conviction, guilty of a felony of the third degree, punishable for the first such conviction by a fine of not more than $50,000 for each day of violation or imprisonment not to exceed 5 years, or both, and for any subsequent conviction by a fine of not more than $100,000 per day of violation or imprisonment of not more than 10 years, or both.

(c)1.  As used in this paragraph, "Class II violation" means a violation of this part, or the rules promulgated pursuant to this part, which pertains to small quantity generators as defined by applicable department rules and which does not result in a discharge or serious threat of a discharge of hazardous waste to the environment, or does not involve the failure to ensure that groundwater will be protected or that hazardous waste will be destined for and delivered to permitted facilities. Class II violations shall include, but need not be limited to, the failure to submit manifest exception reports in a timely manner, failure to provide a generator's United States Environmental Protection Agency identification number on the manifest, failure to maintain complete personnel training records, and failure to meet inspection schedule requirements for tanks and containers that hold hazardous waste.

2.  In addition to any other judicial or administrative remedy authorized by this part, the department may assess a noncompliance fee for any Class II violation by a small quantity generator. For the first and second violations, the fee shall not be assessed until the generator has failed to comply after notice of noncompliance and has been given a reasonable time to comply. If the owner or operator fails after three or more notifications to comply with the requirement to correct the Class II violation, the department may assess the fee without waiting for compliance.

3.  At the time of assessment of a noncompliance fee, the department shall give the small quantity generator written notice setting forth the amount assessed, the specific provision of law, rule, or order alleged to be violated, the facts alleged to constitute the violation, the corrective action needed to bring the party into compliance, and the rights available under chapter 120 to challenge the assessment. The assessment shall be final and effective unless an administrative proceeding is requested within 20 days after receipt of the written notice, and shall be enforceable pursuant to s. 120.69. Once the assessment has become final and effective, the department shall refuse to issue, modify, transfer, or renew a permit or issue an identification number to the facility until the fee has been paid.

4.  Before assessing any noncompliance fee, the department shall adopt rules to implement the provisions of this paragraph, which shall include a description of activities that constitute Class II violations and the setting of appropriate amounts for the noncompliance fees, based upon the type of violation, but not to exceed $250. Total noncompliance fees assessed shall not exceed $1,000 per assessment for all violations attributable to a specific facility during any one month.

5.  The department's assessment of a noncompliance fee shall be in lieu of any civil action that may be instituted by the department in a court of competent jurisdiction to impose and recover civil penalties for any violation that resulted in the fee assessment, unless the department initiates a civil action for nonpayment of a fee properly assessed pursuant to this paragraph.

6.  Noncompliance fees collected pursuant to this paragraph shall be deposited in the Ecosystem Management and Restoration Trust Fund. The department may use a portion of the fund to contract for services to help in the collection of fees assessed pursuant to this paragraph.

(4)  In addition to any other liability under this chapter, and subject only to the defenses set forth in subsections (5), (6), and (7):

(a)  The owner and operator of a facility;

(b)  Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance was disposed of;

(c)  Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person or by any other party or entity at any facility owned or operated by another party or entity and containing such hazardous substances; and

(d)  Any person who accepts or has accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person,

is liable for all costs of removal or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from the release or threatened release of a hazardous substance as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510.

(5)  The following defenses are available to a person alleged to be in violation of this act, who shall plead and prove that the alleged violation was solely the result of any of the following or combination of the following:

(a)  An act of war.

(b)  An act of government, either state, federal, or local, unless the person claiming the defense is a governmental body, in which case this defense is available only by acts of other governmental bodies.

(c)  An act of God, which means only an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency.

(d)  An act or omission of a third party other than an employee or agent of the defendant or other than one whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the defendant establishes by a preponderance of the evidence that:

1.  The defendant exercised due care with respect to the hazardous waste concerned, taking into consideration the characteristics of such biomedical or hazardous waste, in light of all relevant facts and circumstances; and

2.  The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.

(6)  A generator or transporter of hazardous wastes who has complied with this act and with the applicable rules adopted under this act and who has contracted for the disposal of hazardous wastes with a licensed hazardous waste disposal or processing facility is relieved from liability for those wastes upon receipt of a certificate of disposal from the disposal or processing facility.

(7)  A generator of hazardous waste who has complied with this act and with the applicable rules under this act and who has contracted for the transportation of hazardous waste to a licensed hazardous waste facility is relieved of liability to the extent that such liability is covered by the insurance or bond of the transporter obtained pursuant to this act.

(8)  A party liable for a violation of this section shall have a right to contribution from other parties identified in subsection (4) as liable for the pollution conditions.

History.--s. 8, ch. 80-302; s. 10, ch. 82-27; s. 35, ch. 83-310; s. 38, ch. 84-338; s. 41, ch. 86-186; s. 3, ch. 89-143; s. 4, ch. 90-82; s. 52, ch. 93-207; s. 414, ch. 94-356; s. 5, ch. 96-284; s. 69, ch. 96-321.