CODING: Words stricken are deletions; words underlined are additions.House Bill 1153
Florida House of Representatives - 1997 HB 1153
By Representatives Smith, Burroughs, Kelly, Sanderson,
Sembler, Dennis and K. Pruitt
1 A bill to be entitled
2 An act relating to environmental improvement;
3 providing definitions; creating the
4 Environmental Improvement Program; providing
5 for environmental self-audits; providing a
6 purpose; providing procedures for admission to
7 the program; providing a limited exemption for
8 certain information from discovery or
9 introduction as evidence under certain
10 circumstances; prohibiting the compelling of
11 testimony under certain circumstances;
12 prohibiting certain civil or administrative
13 enforcement actions under certain
14 circumstances; providing requirements for
15 reports of violations of environmental laws;
16 providing construction; providing for future
17 repeal and review by the Legislature; providing
18 criteria for review; providing procedures;
19 protecting certain rights from the effect of
20 repeal; providing for nonenforcement of certain
21 provisions to the extent of conflict with
22 federal law; providing an effective date.
23
24 WHEREAS, it is the intent of the Legislature to
25 encourage regulated entities to conduct voluntary self-audits
26 to improve compliance with environmental laws and to protect
27 the environment from harm which is preventable through early
28 detection and timely cleanup, and
29 WHEREAS, to ensure appropriate review and evaluation of
30 the effectiveness of this act, the Legislature hereby creates
31 a limited, 5-year pilot project which affects the discovery
1
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 and disclosure of civil or administrative violations, but does
2 not affect the laws or procedures relating to the prosecution
3 of criminal violations, NOW, THEREFORE,
4
5 Be It Enacted by the Legislature of the State of Florida:
6
7 Section 1. Environmental Improvement Program.--
8 (1) Definition.--For purposes of this section:
9 (a) "Department" means the Department of Environmental
10 Protection.
11 (b) "Environmental law" means any special or general
12 law, rule, regulation, ordinance, code, certification, order,
13 permit, or license designed to protect or preserve the
14 environment or prevent pollution.
15 (c) "Environmental self-audit" means a systematic and
16 documented review of one or more facilities or facility
17 programs, operations, or practices which is used to determine
18 compliance with one or more environmental laws or to identify
19 opportunities to improve environmental protection.
20 (2) The Environmental Improvement Program is hereby
21 created. The purpose of the program is to encourage persons to
22 conduct voluntary environmental self-audits that result in
23 improved compliance with state or local environmental laws.
24 Any person who voluntarily conducts any environmental
25 self-audit shall be eligible to participate in the program.
26 (3) A person must provide notice to the department of
27 the person's intent to participate in the program for a
28 12-month period. The department shall have 30 days after the
29 date notice is received during which to deny a person
30 admission into the program. A person shall be admitted and, if
31 subsequent notice is refiled, shall be readmitted into the
2
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 program unless the person has been found guilty within the
2 prior 5 years of any willful violation of s. 403.161, Florida
3 Statutes. Any person whom the department fails to deny in
4 writing within the 30-day period shall be admitted into the
5 program.
6 (4) Information, documents, or records prepared as a
7 result of an environmental self-audit conducted by a program
8 participant shall not be subject to discovery or introduction
9 into evidence in any civil or administrative action or to
10 disclosure pursuant to s. 403.091, Florida Statutes, unless:
11 (a) The environmental self-audit:
12 1. Is conducted to avoid liability resulting from an
13 agency enforcement action which is imminent or pending; or
14 2. Is specifically required to be performed pursuant
15 to the terms of an order or settlement agreement;
16 (b) The information, documents, or records identify a
17 violation and:
18 1. The participant does not initiate corrective
19 measures and achieve compliance within the period specified by
20 environmental law or, if no period is specified, within a
21 reasonable period after the violation is discovered; or
22 2. The participant knew or was willfully blind to the
23 violation at the time the environmental self-audit was
24 initiated; or
25 (c) The information, documents, or records:
26 1. Are otherwise subject to public disclosure pursuant
27 to chapter 119, Florida Statutes, or s. 24, Art. I of the
28 State Constitution;
29 2. Are required to be collected, developed,
30 maintained, reported, or otherwise made available to an agency
31 pursuant to an environmental law;
3
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 3. Disclose a violation which is an imminent and
2 substantial hazard to human health or the environment;
3 4. Existed prior to the commencement of the
4 environmental self-audit;
5 5. Are obtained by observation, sampling, or
6 monitoring by any agency; or
7 6. Are obtained from a source independent of the
8 environmental self-audit.
9 (5) No person who has participated in an environmental
10 self-audit may be compelled to testify in any civil or
11 administrative proceeding regarding matters related to the
12 environmental self-audit, except regarding any matter of which
13 the person has actual knowledge independent of the
14 environmental self-audit.
15 (6) No civil or administrative enforcement action
16 shall be maintained against a program participant for a
17 violation of any environmental law which is detected by an
18 environmental self-audit and reported to the department within
19 30 days after completing the environmental self-audit, unless:
20 (a) The participant does not initiate corrective
21 measures and achieve compliance within the period specified by
22 environmental law or, if no period is specified, within a
23 reasonable period after the violation is discovered;
24 (b) The environmental self-audit is conducted or the
25 violation is reported to avoid liability resulting from an
26 agency enforcement action which is imminent or pending;
27 (c) The violation is detected pursuant to an
28 environmental self-audit that is required to be performed
29 pursuant to the terms of an order or settlement agreement; or
30
31
4
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 (d) The participant knew or was willfully blind to the
2 violation at the time the environmental self-audit was
3 initiated.
4 (7) If a participant reports a violation pursuant to
5 subsection (6), the report shall state the nature of the
6 violation and briefly describe the action which is proposed to
7 be taken or has been taken to correct the violation. If the
8 estimated time required to correct a violation exceeds 90
9 days, the report shall include a proposed schedule of
10 activities for completing the corrective action. Any
11 authorized representative of the department may at any
12 reasonable time enter and inspect the property of a program
13 participant for the purpose of ascertaining the state of
14 activities required to correct any reported violation. Nothing
15 in this subsection waives, a participant's rights under
16 subsection (4) or subsection (5).
17 (8) Nothing in this section shall be construed to
18 apply to any criminal action or criminal investigation or to
19 prohibit a criminal enforcement action.
20 (9) Nothing in this section limits, waives, or
21 abrogates the scope or nature of any statutory or common law
22 privilege.
23 Section 2. (1) This act is repealed July 1, 2002, and
24 shall be reviewed by the Legislature prior to that date. To
25 assist the Legislature in its review, the Division of Economic
26 and Demographic Research of the Joint Legislative Management
27 Committee shall conduct a comprehensive review of the program
28 which shall be presented to the Legislature by January 1,
29 2002. The review shall include an examination of issues
30 related to:
31
5
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 (a) The economy, efficiency, or effectiveness of the
2 program as a mechanism for environmental protection.
3 (b) The structure or design of the program to
4 accomplish program goals and objectives.
5 (c) Barriers to small business participation in the
6 program.
7 (d) The adequacy of the program to meet the objectives
8 identified by the Legislature.
9 (2) To conduct the review and evaluate the identified
10 issues, the division shall collect and classify information
11 related to:
12 (a) The type of person participating in the program,
13 except when such information would reveal the identity of a
14 specific participant.
15 (b) The size of the business of each participant which
16 is a business entity.
17 (c) The frequency and scope of self-audits annually
18 conducted by a participant before and after the creation of
19 the program.
20 (d) The duration of the participant's auditing
21 program.
22 (e) The number and nature of violations discovered.
23 (f) The number and nature of findings which are not
24 regulatory violations.
25 (g) The duration of discovered violations.
26 (h) The length of time required to complete the
27 identified corrective action.
28 (i) The number and nature of violations reported under
29 the program.
30 (3) The review shall compare information concerning
31 self-audits conducted under the program to information
6
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 concerning agency inspections of the same facilities and shall
2 include consideration of such issues as the relative
3 frequency, scope, and outcome of agency inspections when
4 compared to the frequency, scope, and outcome of voluntary
5 self-audits and trends related to the number and nature of
6 violations discovered and incidences or patterns of
7 environmental impacts occurring within the state or within a
8 particular industry classification.
9 (4) To prepare the review required by this section,
10 the division may designate one or more representatives who may
11 enter the property of any program participant to visually
12 inspect documents or records prepared as a result of the
13 participant's environmental self-audits. Such authorized
14 representative may not copy the documents or records but may
15 take notes regarding information contained in the document or
16 records as may be necessary to complete the review. The
17 representative shall not record any information which
18 reasonably could disclose the identity of a specific program
19 participant. To collect the data required to prepare the
20 review, the division may obtain information from every program
21 participant or may obtain information from a representative
22 sample of program participants. Program participants shall
23 make the necessary documents or records available to the
24 division or authorized representative. Nothing in this section
25 limits, waives, or abrogates the scope or nature of any right
26 or benefit granted to a program participant by this act.
27 Section 3. The repeal of this act by the Legislature
28 shall not affect the rights of persons acting in reliance on
29 provisions of this act prior to the effective date of such
30 repeal.
31
7
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1997 HB 1153
60-253A-97
1 Section 4. If any provision of this act or the
2 application thereof to any person or circumstance violates the
3 express terms of any federal law or agreement required to
4 retain state responsibility for implementation of a
5 federally-delegated environmental law, the provision shall not
6 be enforced, but only to the extent that such provision
7 conflicts with the terms of the law or agreement.
8 Section 5. No rules shall be required to implement the
9 provisions of this act.
10 Section 6. This act shall take effect July 1, 1997.
11
12 *****************************************
13 HOUSE SUMMARY
14
Provides for a 5-year pilot Environmental Improvement
15 Program under which regulated entities may conduct
environmental self-audits to improve compliance with
16 environmental laws and protect the environment. See bill
for details.
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
8