Senate Bill 1290c2

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    Florida Senate - 2000                    CS for CS for SB 1290

    By the Committees on Governmental Oversight and Productivity;
    Comprehensive Planning, Local and Military Affairs; and
    Senators King, Grant, Dyer, Geller and Campbell



    302-2129-00

  1                      A bill to be entitled

  2         An act relating to solid waste; providing

  3         requirements for local governments providing

  4         solid waste collection services in competition

  5         with private companies; providing remedies for

  6         such private companies; providing procedures

  7         and requirements; providing for award of

  8         damages, costs, and attorney's fees; providing

  9         application; providing limitations for local

10         government solid waste collection services

11         outside the jurisdiction of the local

12         government; providing remedies for certain

13         injured parties; providing requirements and

14         procedures; prohibiting local governments from

15         displacing private waste collection companies

16         under certain circumstances; providing

17         requirements; providing procedures and

18         requirements for such displacement; providing

19         definitions; amending s. 171.062, F.S.;

20         providing for continuation of certain solid

21         waste services in certain annexed areas;

22         providing an exception; amending s. 165.061,

23         F.S.; providing for certain merger plans to

24         honor certain solid waste contracts; providing

25         limitations; amending s. 403.087, F.S.;

26         prescribing maximum fees for post-closure

27         permits and clean-closure-plan approval;

28         amending s. 403.706, F.S.; authorizing solid

29         waste fee waivers for certain nonprofit

30         organizations; amending s. 403.722, F.S.;

31         requiring post-closure permits and

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  1         clean-closure-plan approvals; providing an

  2         effective date.

  3

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

  5

  6         Section 1.  Solid waste collection services.--

  7         (1)  SOLID WASTE COLLECTION SERVICES IN COMPETITION

  8  WITH PRIVATE COMPANIES.--

  9         (a)  A local government that provides specific solid

10  waste collection services in direct competition with a private

11  company:

12         1.  Shall comply with the provisions of local

13  environmental, health, and safety standards that also are

14  applicable to a private company providing such collection

15  services in competition with the local government.

16         2.  Shall not enact or enforce any license, permit,

17  registration procedure, or associated fee that:

18         a.  Does not apply to the local government and for

19  which there is not a substantially similar requirement that

20  applies to the local government; and

21         b.  Provides the local government with a material

22  advantage in its ability to compete with a private company in

23  terms of cost or ability to promptly or efficiently provide

24  such collection services.  Nothing in this sub-subparagraph

25  shall apply to any zoning, land use, or comprehensive plan

26  requirement.

27         (b)1.  A private company with which a local government

28  is in competition may bring an action to enjoin a violation of

29  paragraph (a) against any local government.  No injunctive

30  relief shall be granted if the official action that forms the

31  basis for the suit bears a reasonable relationship to the

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  1  health, safety, or welfare of the citizens of the local

  2  government unless the court finds that the actual or potential

  3  anticompetitive effects outweigh the public benefits of the

  4  challenged action.

  5         2.  As a condition precedent to the institution of an

  6  action pursuant to this paragraph, the complaining party shall

  7  first file with the local government a notice referencing this

  8  paragraph and setting forth the specific facts upon which the

  9  complaint is based and the manner in which the complaining

10  party is affected.  The complaining party may provide evidence

11  to substantiate the claims made in the complaint.  Within 30

12  days after receipt of such a complaint, the local government

13  shall respond in writing to the complaining party explaining

14  the corrective action taken, if any.  If no response is

15  received within 30 days or if appropriate corrective action is

16  not taken within a reasonable time, the complaining party may

17  institute the judicial proceedings authorized in this

18  paragraph.  However, failure to comply with this subparagraph

19  shall not bar an action for a temporary restraining order to

20  prevent immediate and irreparable harm from the conduct or

21  activity complained of.

22         3.  The court may, in its discretion, award to the

23  prevailing party or parties costs and reasonable attorney's

24  fees.

25         (c)  This subsection does not apply when the local

26  government is exclusively providing the specific solid waste

27  collection services itself or pursuant to an exclusive

28  franchise.

29         (2)  SOLID WASTE COLLECTION SERVICES OUTSIDE

30  JURISDICTION.--

31

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  1         (a)  Notwithstanding section 542.235, Florida Statutes,

  2  or any other provision of law, a local government that

  3  provides solid waste collection services outside its

  4  jurisdiction in direct competition with private companies is

  5  subject to the same prohibitions against predatory pricing

  6  applicable to private companies under sections 542.18 and

  7  542.19, Florida Statutes.

  8         (b)  Any person injured by reason of violation of this

  9  subsection may sue therefor in the circuit courts of this

10  state and shall be entitled to injunctive relief and to

11  recover the damages and the costs of suit.  The court may, in

12  its discretion, award to the prevailing party or parties

13  reasonable attorney's fees.  An action for damages under this

14  subsection must be commenced within 4 years.  No person may

15  obtain injunctive relief or recover damages under this

16  subsection for any injury that results from actions taken by a

17  local government in direct response to a natural disaster or

18  similar occurrence for which an emergency is declared by

19  executive order or proclamation of the Governor pursuant to

20  section 252.36, Florida Statutes, or for which such a

21  declaration might be reasonably anticipated within the area

22  covered by such executive order or proclamation.

23         (c)  As a condition precedent to the institution of an

24  action pursuant to this subsection, the complaining party

25  shall first file with the local government a notice

26  referencing this subsection and setting forth the specific

27  facts upon which the complaint is based and the manner in

28  which the complaining party is affected.  Within 30 days after

29  receipt of such complaint, the local government shall respond

30  in writing to the complaining party explaining the corrective

31  action taken, if any.  If the local government denies that it

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  1  has engaged in conduct that is prohibited by this subsection,

  2  its response shall include an explanation showing why the

  3  conduct complained of does not constitute predatory pricing.

  4         (d)  For the purposes of this subsection, the

  5  jurisdiction of a county, special district, or solid waste

  6  authority shall include all incorporated and unincorporated

  7  areas within the county, special district, or solid waste

  8  authority.

  9         (3)  DISPLACEMENT OF PRIVATE WASTE COMPANIES.--

10         (a)  As used in this subsection, the term

11  "displacement" means a local government's provision of a

12  collection service which prohibits a private company from

13  continuing to provide the same service that it was providing

14  when the decision to displace was made.  The term does not

15  include:

16         1.  Competition between the public sector and private

17  companies for individual contracts;

18         2.  Actions by which a local government, at the end of

19  a contract with a private company, refuses to renew the

20  contract and either awards the contract to another private

21  company or decides for any reason to provide the collection

22  service itself;

23         3.  Actions taken against a private company because the

24  company has acted in a manner threatening to the public health

25  or safety or resulting in a substantial public nuisance;

26         4.  Actions taken against a private company because the

27  company has materially breached its contract with the local

28  government;

29         5.  Refusal by a private company to continue operations

30  under the terms and conditions of its existing agreement

31  during the 3-year notice period;

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  1         6.  Entering into a contract with a private company to

  2  provide garbage, trash, or refuse collection which contract is

  3  not entered into under an ordinance that displaces or

  4  authorizes the displacement of another private company

  5  providing garbage, trash, or refuse collection;

  6         7.  Situations in which a majority of the property

  7  owners in the displacement area petition the governing body to

  8  take over the collection service;

  9         8.  Situations in which the private companies are

10  licensed or permitted to do business within the local

11  government for a limited time and such license or permit

12  expires and is not renewed by the local government.  This

13  subparagraph does not apply to licensing or permitting

14  processes enacted after May 1, 1999, or to occupational

15  licenses; or

16         9.  Annexations, to the extent that the provisions of

17  section 171.062(4), Florida Statutes, apply.

18         (b)  A local government or combination of local

19  governments may not displace a private company that provides

20  garbage, trash, or refuse collection service without first:

21         1.  Holding at least one public hearing seeking comment

22  on the advisability of the local government or combination of

23  local governments providing the service.

24         2.  Providing at least 45 days' written notice of the

25  hearing, delivered by first-class mail to all private

26  companies that provide the service within the jurisdiction.

27         3.  Providing public notice of the hearing.

28         (c)  Following the final public hearing held under

29  paragraph (b), but not later than 1 year after the hearing,

30  the local government may proceed to take those measures

31  necessary to provide the service.  A local government shall

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  1  provide 3 years' notice to a private company before it engages

  2  in the actual provision of the service that displaces the

  3  company.  As an alternative to delaying displacement 3 years,

  4  a local government may pay a displaced company an amount equal

  5  to the company's preceding 15 months' gross receipts for the

  6  displaced service in the displacement area.  The 3-year notice

  7  period shall lapse as to any private company being displaced

  8  when the company ceases to provide service within the

  9  displacement area.  Nothing in this paragraph prohibits the

10  local government and the company from voluntarily negotiating

11  a different notice period or amount of compensation.

12         (4)  DEFINITIONS.--As used in this section:

13         (a)  "In competition" or "in direct competition" means

14  the vying between a local government and a private company to

15  provide substantially similar solid waste collection services

16  to the same customer.

17         (b)  "Private company" means any entity other than a

18  local government or other unit of government that provides

19  solid waste collection services.

20         Section 2.  Subsection (5) is added to section 171.062,

21  Florida Statutes, to read:

22         171.062  Effects of annexations or contractions.--

23         (5)  A party that has a contract that was in effect for

24  at least 6 months prior to the initiation of an annexation to

25  provide solid waste collection services in an unincorporated

26  area may continue to provide such services to an annexed area

27  for 5 years or the remainder of the contract term, whichever

28  is shorter.  Within a reasonable time following a written

29  request to do so, the party shall provide the annexing

30  municipality with a copy of the pertinent portion of the

31  contract or other written evidence showing the duration of the

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  1  contract, excluding any automatic renewals or so-called

  2  "evergreen" provisions. This subsection does not apply to

  3  contracts to provide solid waste collection services to

  4  single-family residential properties in those enclaves

  5  described in s. 171.046.

  6         Section 3.  Paragraph (d) is added to subsection (2) of

  7  section 165.061, Florida Statutes, to read:

  8         165.061  Standards for incorporation, merger, and

  9  dissolution.--

10         (2)  The incorporation of a new municipality through

11  merger of existing municipalities and associated

12  unincorporated areas must meet the following conditions:

13         (d)  In accordance with s. 10, Art. I of the State

14  Constitution, the plan for merger or incorporation must honor

15  existing solid waste contracts in the affected geographic area

16  subject to merger or incorporation; however, the plan for

17  merger or incorporation may provide that existing contracts

18  for solid waste collection services shall be honored only for

19  5 years or the remainder of the contract term, whichever is

20  shorter, and may require that a copy of the pertinent portion

21  of the contract or other written evidence of the duration of

22  the contract, excluding any automatic renewals or so-called

23  "evergreen" provisions, be provided to the municipality within

24  a reasonable time following a written request to do so.

25         Section 4.  Paragraph (a) of subsection (6) of section

26  403.087, Florida Statutes, is amended to read:

27         403.087  Permits; general issuance; denial; revocation;

28  prohibition; penalty.--

29         (6)(a)  The department shall require a processing fee

30  in an amount sufficient, to the greatest extent possible, to

31  cover the costs of reviewing and acting upon any application

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  1  for a permit or request for site-specific alternative criteria

  2  or for an exemption from water quality criteria and to cover

  3  the costs of surveillance and other field services and related

  4  support activities associated with any permit or plan approval

  5  issued pursuant to this chapter. However, when an application

  6  is received without the required fee, the department shall

  7  acknowledge receipt of the application and shall immediately

  8  return the unprocessed application to the applicant and shall

  9  take no further action until the application is received with

10  the appropriate fee.  The department shall adopt a schedule of

11  fees by rule, subject to the following limitations:

12         1.  The permit fee for any of the following permits may

13  not exceed $32,500:

14         a.  Hazardous waste, construction permit.

15         b.  Hazardous waste, operation permit.

16         c.  Hazardous waste, post-closure closure permit, or

17  clean-closure-plan approval.

18         2.  The permit fee for a Class I injection well

19  construction permit may not exceed $12,500.

20         3.  The permit fee for any of the following permits may

21  not exceed $10,000:

22         a.  Solid waste, construction permit.

23         b.  Solid waste, operation permit.

24         c.  Class I injection well, operation permit.

25         4.  The permit fee for any of the following permits may

26  not exceed $7,500:

27         a.  Air pollution, construction permit.

28         b.  Solid waste, closure permit.

29         c.  Drinking water, construction or operation permit.

30         d.  Domestic waste residuals, construction or operation

31  permit.

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  1         e.  Industrial waste, operation permit.

  2         f.  Industrial waste, construction permit.

  3         5.  The permit fee for any of the following permits may

  4  not exceed $5,000:

  5         a.  Domestic waste, operation permit.

  6         b.  Domestic waste, construction permit.

  7         6.  The permit fee for any of the following permits may

  8  not exceed $4,000:

  9         a.  Wetlands resource management--(dredge and fill),

10  standard form permit.

11         b.  Hazardous waste, research and development permit.

12         c.  Air pollution, operation permit, for sources not

13  subject to s. 403.0872.

14         d.  Class III injection well, construction, operation,

15  or abandonment permits.

16         7.  The permit fee for Class V injection wells,

17  construction, operation, and abandonment permits may not

18  exceed $750.

19         8.  The permit fee for any of the following permits may

20  not exceed $500:

21         a.  Domestic waste, collection system permits.

22         b.  Wetlands resource management--(dredge and fill and

23  mangrove alterations), short permit form.

24         c.  Drinking water, distribution system permit.

25         9.  The permit fee for stormwater operation permits may

26  not exceed $100.

27         10.  The general permit fees for permits that require

28  certification by a registered professional engineer or

29  professional geologist may not exceed $500.  The general

30  permit fee for other permit types may not exceed $100.

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  1         11.  The fee for a permit issued pursuant to s. 403.816

  2  is $5,000, and the fee for any modification of such permit

  3  requested by the applicant is $1,000.

  4         12.  The regulatory program and surveillance fees for

  5  facilities permitted pursuant to s. 403.088 or s. 403.0885, or

  6  for facilities permitted pursuant to s. 402 of the Clean Water

  7  Act, as amended, 33 U.S.C. ss. 1251 et seq., and for which the

  8  department has been granted administrative authority, shall be

  9  limited as follows:

10         a.  The fees for domestic wastewater facilities shall

11  not exceed $7,500 annually.  The department shall establish a

12  sliding scale of fees based on the permitted capacity and

13  shall ensure smaller domestic waste dischargers do not bear an

14  inordinate share of costs of the program.

15         b.  The annual fees for industrial waste facilities

16  shall not exceed $11,500. The department shall establish a

17  sliding scale of fees based upon the volume, concentration, or

18  nature of the industrial waste discharge and shall ensure

19  smaller industrial waste dischargers do not bear an inordinate

20  share of costs of the program.

21         c.  The department may establish a fee, not to exceed

22  the amounts in subparagraphs 4. and 5., to cover additional

23  costs of review required for permit modification or

24  construction engineering plans.

25         Section 5.  Paragraph (d) is added to subsection (17)

26  of section 403.706, Florida Statutes to read:

27         403.706  Local government solid waste

28  responsibilities.--

29         (17)  To effect the purposes of this part, counties and

30  municipalities are authorized, in addition to other powers

31  granted pursuant to this part:

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  1         (d)  To grant a solid waste fee waiver to nonprofit

  2  organizations that are engaged in the collection of donated

  3  goods for charitable purposes and that have a recycling or

  4  reuse rate of 50 percent or better.

  5         Section 6.  Subsection (1) of section 403.722, Florida

  6  Statutes, is amended to read:

  7         403.722  Permits; hazardous waste disposal, storage,

  8  and treatment facilities.--

  9         (1)  Each person who intends to construct, modify,

10  operate, or close a hazardous waste disposal, storage, or

11  treatment facility shall obtain a construction permit,

12  operation permit, or post closure permit, or clean closure

13  plan approval from the department prior to constructing,

14  modifying, operating, or closing the facility.  By rule, the

15  department may provide for the issuance of a single permit

16  instead of any two or more hazardous waste facility permits.

17         Section 7.  This act shall take effect October 1, 2000.

18

19          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
20                            CS/SB 1290

21

22  Redesignates the sections of the act.

23  Modifies the definition of the phrase "in competition" to
    strike the words "or market."
24
    Permits local governments to grant solid waste fee waivers to
25  nonprofit organizations that collect donated goods for
    charitable purposes and have a recycling or reuse rate of 50%
26  or better.

27  Updates permitting language references.

28

29

30

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