Senate Bill 1948

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    Florida Senate - 2000                                  SB 1948

    By Senator Carlton





    24-1412-00

  1                      A bill to be entitled

  2         An act relating to environmental administrative

  3         penalties; amending s. 253.04, F.S.;

  4         authorizing the assessment of administrative

  5         penalties; providing for the deposit of moneys

  6         in specified trust funds; amending ss. 369.25,

  7         373.129, 377.37, 378.211, F.S.; granting the

  8         Department of Environmental Protection

  9         specified powers to assess administrative

10         penalties; amending s. 403.121, F.S.; revising

11         the department's enforcement procedures and

12         schedule of administrative penalties; amending

13         s. 403.726, F.S.; authorizing the department to

14         recover a civil penalty and assess

15         administrative penalties; amending ss. 403.727,

16         403.860, F.S.; revising administrative

17         penalties; providing an effective date.

18

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

20

21         Section 1.  Subsections (2) and (7) of section 253.04,

22  Florida Statutes, are amended to read:

23         253.04  Duty of board to protect, etc., state lands;

24  state may join in any action brought.--

25         (2)  In addition to the authority granted by subsection

26  (1), the board may assess an administrative penalty for

27  unauthorized use, alteration, or injury to state lands or

28  other violation of this chapter or rules adopted under this

29  chapter. With regard to coral reefs, the board may recover

30  either administrative penalties under this section or civil

31  penalties under subsection (3). The administrative penalties

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  1  may be assessed per day, per violation. This schedule is

  2  inadmissible in any judicial proceeding to recover civil

  3  penalties or damages for injury to state lands. Subject to the

  4  limits and requirements of s. 403.121(5)-(10), the board may

  5  assess damages for injury to state lands, and the board may

  6  assess administrative penalties according to the following

  7  schedule:

  8         (a)  For unauthorized alteration or injury to state

  9  lands, $5,000.

10         (b)  For unauthorized use of more than 100 square feet

11  of state lands in an aquatic preserve, $4,000.

12         (c)  For unauthorized use of more than 200 square feet

13  of state lands not in an aquatic preserve, $3,000.

14         (d)  For unauthorized use of 100 square feet or less of

15  state lands in an aquatic preserve, $2,000.

16         (e)  For unauthorized use of 20 square feet or less of

17  state lands not within an aquatic preserve, $1,000.

18         (f)  For failure to apply timely for a lease transfer,

19  failure to renew timely a state lands lease or other

20  authorization, or failure to comply with any other requirement

21  that is not otherwise identified in this schedule, $500. In

22  lieu of seeking monetary damages pursuant to subsection (1)

23  against any person or the agent of any person who has been

24  found to have willfully damaged lands of the state, the

25  ownership or boundaries of which have been established by the

26  state, to have willfully damaged or removed products thereof

27  in violation of state or federal law, to have knowingly

28  refused to comply with or willfully violated the provisions of

29  this chapter, or to have failed to comply with an order of the

30  board to remove or alter any structure or vessel that is not

31  in compliance with applicable rules or with conditions of

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  1  authorization to locate such a structure or vessel on

  2  state-owned land, the board may impose a fine for each offense

  3  in an amount up to $10,000 to be fixed by rule and imposed and

  4  collected by the board in accordance with the provisions of

  5  chapter 120.  Each day during any portion of which such

  6  violation occurs constitutes a separate offense.  This

  7  subsection does not apply to any act or omission which is

  8  currently subject to litigation wherein the state or any

  9  agency of the state is a party as of October 1, 1984, or to

10  any person who holds such lands under color of title. Nothing

11  contained herein impairs the rights of any person to obtain a

12  judicial determination in a court of competent jurisdiction of

13  such person's interest in lands that are the subject of a

14  claim or proceeding by the department under this subsection.

15         (7)  All moneys collected from penalties pursuant to

16  fines imposed or damages awarded pursuant to this section

17  shall be deposited into the Internal Improvement Trust Fund

18  created by s. 253.01 and used for the purposes provided

19  defined in that section, except that moneys recovered for

20  injury to all coral reefs and to natural resources situated

21  within or offshore from an area of critical state concern

22  shall be deposited into the Ecosystem Management and

23  Restoration Trust Fund and used for the purposes provided in

24  s. 380.0558.

25         Section 2.  Paragraph (k) is added to subsection (3) of

26  section 369.25, Florida Statutes, to read:

27         369.25  Aquatic plants; definitions; permits; powers of

28  department; penalties.--

29         (3)  The department has the following powers:

30

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  1         (k)  To enforce this chapter in the same manner and to

  2  the same extent as provided in ss. 403.121, 403.131, 403.141,

  3  and 403.161.

  4         Section 3.  Subsection (7) of section 373.129, Florida

  5  Statutes, is amended to read:

  6         373.129  Maintenance of actions.--The department, the

  7  governing board of any water management district, any local

  8  board, or a local government to which authority has been

  9  delegated pursuant to s. 373.103(8), is authorized to commence

10  and maintain proper and necessary actions and proceedings in

11  any court of competent jurisdiction for any of the following

12  purposes:

13         (7)  Enforce the provisions of part IV of this chapter

14  in the same manner and to the same extent as provided in ss.

15  373.430, 403.121(1) and (2), 403.131, 403.141, and 403.161.

16         Section 4.  Paragraph (a) of subsection (1) of section

17  377.37, Florida Statutes, is amended to read:

18         377.37  Penalties.--

19         (1)(a)  Any person who violates any provision of this

20  law or any rule, regulation, or order of the division made

21  under this chapter or who violates the terms of any permit to

22  drill for or produce oil, gas, or other petroleum products

23  referred to in s. 377.242(1), or any lessee, permitholder, or

24  operator of equipment or facilities used in the exploration

25  for, drilling for, or production of oil, gas, or other

26  petroleum products who refuses inspection by the division as

27  provided in this chapter, is liable to the state for any

28  damage caused to the air, waters, or property, including

29  animal, plant, or aquatic life, of the state and for

30  reasonable costs and expenses of the state in tracing the

31  source of the discharge, in controlling and abating the source

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  1  and the pollutants, and in restoring the air, waters, and

  2  property, including animal, plant, and aquatic life, of the

  3  state. Furthermore, such person, lessee, permitholder, or

  4  operator is subject to the judicial imposition of a civil

  5  penalty in an amount of not more than $10,000 for each

  6  offense. However, the court may receive evidence in

  7  mitigation. Each day during any portion of which such

  8  violation occurs constitutes a separate offense. The

  9  department may assess administrative penalties for violations

10  of this chapter in accordance with s. 403.121. Penalties

11  collected under this paragraph shall be deposited in the

12  Minerals Trust Fund. The department may use a portion of the

13  fund to contract for services to help in the collection of the

14  administrative penalties assessed under this paragraph. The

15  schedule of administrative penalties provided in this

16  paragraph are not admissible as evidence in any judicial

17  action brought by the department to seek, impose, or recover

18  civil penalties. Nothing in this section gives herein shall

19  give the department the right to bring an action on behalf of

20  any private person.

21         Section 5.  Subsection (2) of section 378.211, Florida

22  Statutes, is amended to read:

23         378.211  Violations; damages; penalties.--

24         (2)  The department may institute a civil action in a

25  court of competent jurisdiction or an administrative action

26  under s. 403.121 to impose and recover a civil penalty for

27  violation of this part or of any rule adopted or order issued

28  pursuant to this part. The penalty shall not exceed the

29  following amounts, and the court shall consider evidence in

30  mitigation:

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  1         (a)  For violations of a minor or technical nature,

  2  $100 per violation.

  3         (b)  For major violations by an operator on which a

  4  penalty has not been imposed under this paragraph during the

  5  previous 5 years, $1,000 per violation.

  6         (c)  For major violations not covered by paragraph (b),

  7  $5,000 per violation.

  8

  9  Subject to the provisions of subsection (4), each day or any

10  portion thereof in which the violation continues shall

11  constitute a separate violation.

12         Section 6.  Section 403.121, Florida Statutes, is

13  amended to read:

14         403.121  Enforcement; procedure; remedies.--The

15  department has shall have the following judicial and

16  administrative remedies and administrative proceedings

17  available to it for violations of this chapter, as specified

18  in s. 403.161(1).

19         (1)  Judicial remedies:

20         (a)  The department may institute a civil action in a

21  court of competent jurisdiction to establish liability and to

22  recover damages for any injury to the air, waters, or

23  property, including animal, plant, and aquatic life, of the

24  state caused by any violation.

25         (b)  The department may institute a civil action in a

26  court of competent jurisdiction to impose and to recover a

27  civil penalty for each violation in an amount of not more than

28  $10,000 per offense.  However, the court may receive evidence

29  in mitigation. Each day during any portion of which such

30  violation occurs constitutes a separate offense.

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  1         (c)  It shall not be a defense to, or ground for

  2  dismissal of, these judicial remedies for damages and civil

  3  penalties that the department has failed to exhaust its

  4  administrative remedies, has failed to serve a notice of

  5  violation, or has failed to hold an administrative hearing

  6  prior to the institution of a civil action.

  7         (2)  Administrative proceedings.-- remedies:

  8         (a)  The department may institute an administrative

  9  proceeding to establish liability and to recover damages for

10  any injury to the air, waters, or property, including animal,

11  plant, or aquatic life, of the state caused by any violation.

12  The department may order that the violator pay a specified sum

13  as damages to the state. Judgment for the amount of damages

14  determined by the department may be entered in any court

15  having jurisdiction thereof and may be enforced as any other

16  judgment.

17         (b)  If the department has reason to believe a

18  violation has occurred, it may institute an administrative

19  proceeding to order the prevention, abatement, or control of

20  the conditions creating the violation or other appropriate

21  corrective action.

22         (c)  An administrative proceeding shall be instituted

23  by the department's serving of a written notice of violation

24  upon the alleged violator by certified mail.  The notice shall

25  specify the provision of the law, rule, regulation, permit,

26  certification, or order of the department alleged to be

27  violated and the facts alleged to constitute a violation

28  thereof.  An order for corrective action may be included with

29  the notice. However, no order shall become effective until

30  after service and an administrative hearing, if requested

31  within 20 days after service.  Failure to request an

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  1  administrative hearing within this time period shall

  2  constitute a waiver thereof.

  3         (d)  Nothing herein shall be construed as preventing

  4  any other legal or administrative action in accordance with

  5  law.

  6         (3)  In an administrative proceeding under subsection

  7  (2), the department may assess the following administrative

  8  penalties:

  9         (a)  For a violation involving domestic or waste water,

10  the department may assess an administrative penalty of $3,000

11  for an unpermitted or unauthorized discharge; plus $2,000 if

12  the discharge jeopardized human health or safety; plus $1,000

13  if the discharge has resulted in a water quality violation;

14  plus $1,000 if the receiving water is an Aquatic Preserve, an

15  Outstanding Florida Water, or Class I, II, or III surface

16  water; and plus $1,000 if the discharge was from a Type I

17  facility. The department may assess an administrative penalty

18  of $4,000 for failure to install, maintain, or use a required

19  air pollution control system or device.

20         (b)  For a violation involving air pollution, the

21  department may assess an administrative penalty of $2,000 for

22  an unpermitted or unauthorized air emission; plus $2,000 if

23  the emission has jeopardized human health or safety; plus

24  $1,000 if the emission has resulted in an air quality

25  violation; plus $1,000 if the emission was from a major

26  source; and plus $1,000 if the emission was more than 150

27  percent of the allowable level. The department may assess an

28  administrative penalty of $4,000 for failure to install,

29  maintain or use a required air pollution control system or

30  device.

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  1         (c)  For a violation involving drinking water, the

  2  department may assess an administrative penalty of $3,000 for

  3  a maximum-contaminant-level violation; plus $2,000 if the

  4  violation is for a primary inorganic, organic, or radiological

  5  maximum-contaminant-level or it is a fecal-coliform-bacteria

  6  violation; plus $1,000 if the violation occurs at a large

  7  system; and plus $1,000 if any maximum-contaminant-level is

  8  exceeded by more than 100 percent.

  9         (d)  For a violation involving solid waste, the

10  department may assess an administrative penalty of $3,000 for

11  the unpermitted or unauthorized disposal or storage of solid

12  waste; plus $1,000 if the solid waste is Class I or Class III

13  (excluding yard trash) or if the solid waste is construction

14  and demolition debris in excess of 20 cubic yards; plus $1,000

15  if the waste is disposed of or stored in any natural or

16  artificial body of water or within 500 feet of a potable water

17  well; plus $1,000 if the waste is PCB at a concentration of 50

18  ppm or greater, is untreated biomedical waste, friable

19  asbestos greater than 1 cubic meter which is not wetted,

20  bagged, and covered, is used oil greater than 25 gallons, or

21  is 10 or more lead acid batteries. The department may assess

22  an administrative penalty of $3,000 for the failure to

23  properly maintain leachate control; for unauthorized burning;

24  for failure to have a trained spotter on duty during

25  operation; for failure to provide access control for three

26  consecutive inspections; or for failure to construct or

27  maintain a required stormwater management system.

28         (e)  For a violation involving dredge and fill, the

29  department may assess an administrative penalty of $1,000 for

30  unpermitted or unauthorized dredging or filling; plus $1,000

31  if the dredging or filling occurs in or contiguous to an

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  1  Aquatic Preserve, Outstanding Florida Water or a Class I, II,

  2  or III surface water; plus $1,000 if the dredging or filling

  3  results in a water quality violation; and plus $1,000 if the

  4  area dredged or filled is one-half acre or more. The

  5  department may assess an administrative penalty of $3,000 for

  6  failure to complete required mitigation or for failure to

  7  record a required conservation easement. The department may

  8  assess a penalty of $2,000 for the failure to properly

  9  construct a stormwater management system within the designated

10  time.

11         (f)  For a violation involving hazardous waste, the

12  department may assess an administrative penalty of $10,000 for

13  an unpermitted disposal, discharge, or release of hazardous

14  waste, or for unpermitted treatment or storage of hazardous

15  waste. The department may assess an administrative penalty of

16  $5,000 for failure to perform a required hazardous waste

17  determination; for failure to notify proper authorities about

18  hazardous waste activities; for failure to use a required

19  hazardous waste manifest; or for accumulation of drums or

20  containers for 31 to 60 days past the storage limit. The

21  department may assess an administrative penalty of $3,000 for

22  the accumulation of drums or containers for 1 to 30 days past

23  the storage limit.

24         (4)  In an administrative proceeding, in addition to

25  the penalties that may be assessed under subsection (3), the

26  department may assess administrative penalties according to

27  the following schedule:

28         (a)  For failure to satisfy financial responsibility

29  requirements or a violation of chapter 377 that results in

30  injury to lands or waters, $5,000.

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  1         (b)  For failure to obtain a required permit; operating

  2  a storage tank system without a required registration;

  3  unauthorized emission, discharge, or disposal of pollutants

  4  not previously identified in subsection (3), $3,000.

  5         (c)  For failure to conduct required monitoring or

  6  testing; failure to conduct required release detection;

  7  failure to construct in compliance with a permit; violation of

  8  a special permit condition; or failure to plug oil, gas,

  9  injection, or disposal wells, $2,000.

10         (d)  For failure to maintain required staff to respond

11  to emergencies; failure to conduct required training; failure

12  to prepare, maintain, or update required contingency plans;

13  failure to adequately respond to emergencies or to bring an

14  emergency situation under control; failure to comply with

15  geophysical seismic line safety onsite reclamation

16  requirements; failure to properly operate, maintain, or close

17  a storage tank system; or failure to submit required

18  notification to the department, $1,000.

19         (e)  For failure to prepare, submit, maintain, or use

20  required reports or other required documentation or failure to

21  comply with any other requirement not otherwise identified in

22  this section, $500.

23         (5)  The administrative penalties in subsections (3)

24  and (4) may be assessed per day, per violation. Once the

25  assessment has become final and effective, the department may

26  refuse to issue, modify, transfer, or renew a permit to the

27  facility or installation until the penalty has been paid.

28         (6)  The total administrative penalties assessed may

29  not exceed $50,000 per assessment for all violations

30  attributable to a specific person or facility. The department

31  may not assess an administrative penalty against a facility if

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  1  the proposed assessment of an administrative penalty is

  2  pending against that facility. 

  3         (7)  The department's assessment of an administrative

  4  penalty is in lieu of any civil action that may be instituted

  5  by the department in a court of competent jurisdiction to

  6  impose and recover civil penalties for any violation that

  7  resulted in the administrative penalty. 

  8         (8)  Fees collected under this subsection must be

  9  deposited in the Ecosystem Management and Restoration Trust

10  Fund. The department may use a portion of the fund to contract

11  for services to help in the collection of the administrative

12  penalties assessed under this section.

13         (9)  The schedule of administrative penalties provided

14  in this section may not be considered in any judicial action

15  brought to impose and recover civil penalties or damages. The

16  schedule of administrative penalties in no way prevents the

17  department from entering into consent orders for greater or

18  lesser amounts or from pursuing greater penalties in a

19  judicial proceeding.

20         (10)  Subject to the limitation in subsection (6), if

21  the same facility or installation is assessed an

22  administrative penalty under this section two times within a

23  1-year period, the department shall increase the second

24  assessed penalty by 50 percent. If the same facility or

25  installation is assessed an administrative penalty under this

26  section three or more times within a 2-year period, the

27  department shall increase the third or subsequent assessed

28  penalty by 100 percent.

29         (3)(a)  In addition to any judicial or administrative

30  remedy authorized by this part, the department may assess a

31  noncompliance fee for failure of any owner or operator of a

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  1  domestic wastewater treatment facility to comply with a permit

  2  condition that requires the submittal of monthly operating

  3  reports or the reporting of the characteristics of the waste

  4  stream or the effects of the facility on surface or ground

  5  water.  For the first and second violations of the reporting

  6  requirements, the fee shall not be assessed until the

  7  department has given the owner or operator at least 30 days to

  8  comply with the reporting requirement.  The time shall not

  9  begin until the department has given the owner or operator

10  written notice of the facts alleged to constitute the

11  reporting violation, the specific provision of law, rule, or

12  order alleged to have been violated by the owner or operator,

13  the corrective action needed to bring the facility into

14  compliance, and the potential penalties that may be imposed as

15  a result of the owner's or operator's failure to comply with

16  the notice.  For subsequent violations, the department does

17  not have to provide 30 days' written notice of the violations

18  prior to assessing a noncompliance fee, except as follows:

19         1.  If any additional reporting violations occur prior

20  to the expiration of either of the 30-day notices issued by

21  the department, the department must provide the owner or

22  operator with 30 days' written notice to correct these

23  violations as well.

24         2.  Upon the renewal of the permit, the department

25  shall reinstate the 30-day notice requirements provided in

26  this subsection prior to assessing a noncompliance fee during

27  the new permit period.

28         (b)  At the time of assessment of a noncompliance fee,

29  the department shall give the owner or operator written notice

30  setting forth the amount assessed, the specific provision of

31  law, rule, or order alleged to be violated, the facts alleged

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  1  to constitute the violation, the corrective action needed to

  2  bring the party into compliance, and the rights available

  3  under chapter 120 to challenge the assessment.  The assessment

  4  shall be final and effective unless an administrative

  5  proceeding is requested within 20 days after receipt of the

  6  written notice, and shall be enforceable pursuant to s.

  7  120.69.  Once the assessment has become final and effective,

  8  the department may refuse to issue, modify, transfer, or renew

  9  a permit to the facility until the fee has been paid.

10         (c)  Before assessing a noncompliance fee, the

11  department shall adopt rules to implement the provisions of

12  this subsection. The rules shall establish specific procedures

13  and assessment amounts for noncompliance fees authorized by

14  paragraph (a). Noncompliance fees shall be set on a sliding

15  scale based upon the type of violation, the degree of

16  noncompliance, and the potential for harm.  Such rules shall

17  also authorize the application of adjustment factors

18  subsequent to the initial assessment to increase or decrease

19  the total amount assessed, such as the good faith efforts or

20  the lack of good faith efforts of the owner or operator to

21  comply with the reporting requirement, the lack of or degree

22  of willfulness or negligence on the part of the owner or

23  operator, the economic benefits associated with the owner's or

24  operator's failure to comply, the owner's or operator's

25  previous history of reporting violations, and the owner's or

26  operator's ability to pay the noncompliance fee.  No

27  noncompliance fee shall exceed $250, and total noncompliance

28  fees assessed shall not exceed $1,000 per assessment for all

29  reporting violations attributable to a specific facility

30  during any one month. No noncompliance fee may be assessed

31  unless the department has, within 90 days of the reporting

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  1  violation, provided the owner or operator written notice of

  2  the violation.

  3         (d)  The department's assessment of a noncompliance fee

  4  shall be in lieu of any civil action which may be instituted

  5  by the department in a court of competent jurisdiction to

  6  impose and recover civil penalties for any violation that

  7  resulted in the fee assessment, unless the department

  8  initiates a civil action for nonpayment of a fee properly

  9  assessed pursuant to this subsection.

10         (e)  Fees collected pursuant to this subsection shall

11  be deposited in the Ecosystem Management and Restoration Trust

12  Fund.  The department may use a portion of the fund to

13  contract for services to help in the collection of the fees

14  assessed pursuant to this subsection.

15         Section 7.  Subsection (2) of section 403.726, Florida

16  Statutes, is amended to read:

17         403.726  Abatement of imminent hazard caused by

18  hazardous substance.--

19         (2)  The department shall take any action necessary

20  pursuant to s. 403.121 or s. 403.131 to abate or substantially

21  reduce any imminent hazard caused by a hazardous substance,

22  including a spill into the environment of a hazardous

23  substance. The department is authorized to use moneys from the

24  Water Quality Assurance Trust Fund to finance such actions,

25  and such expenditures from the fund shall be recoverable

26  pursuant to s. 376.307. Furthermore, the department may

27  recover a civil penalty of not more than $25,000 for each day

28  of continued violation. The department may assess

29  administrative penalties for violations of this section in

30  accordance with s. 403.121.

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  1         Section 8.  Subsection (3) of section 403.727, Florida

  2  Statutes, is amended to read:

  3         403.727  Violations; defenses, penalties, and

  4  remedies.--

  5         (3)  Violations of the provisions of this act are

  6  punishable as follows:

  7         (a)  Any person who violates the provisions of this

  8  act, the rules or orders of the department, or the conditions

  9  of a permit is liable to the state for any damages specified

10  in s. 403.141 and for a civil penalty of not more than $50,000

11  for each day of continued violation, except as otherwise

12  provided herein. The department may revoke any permit issued

13  to the violator.  In any action by the department against a

14  small hazardous waste generator for the improper disposal of

15  hazardous wastes, a rebuttable presumption of improper

16  disposal shall be created if the generator was notified

17  pursuant to s. 403.7234; the generator shall then have the

18  burden of proving that the disposal was proper. If the

19  generator was not so notified, the burden of proving improper

20  disposal shall be placed upon the department. Furthermore, the

21  department may assess administrative penalties for violations

22  of this section in accordance with s. 403.121.

23         (b)  Any person who knowingly or by exhibiting reckless

24  indifference or gross careless disregard for human health:

25         1.  Transports or causes to be transported any

26  hazardous waste, as defined in s. 403.703, to a facility which

27  does not have a permit when such a permit is required under s.

28  403.707 or s. 403.722;

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

30         a.  At any place but a hazardous waste facility which

31  has a current and valid permit pursuant to s. 403.722;

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  1         b.  In knowing violation of any material condition or

  2  requirement of such permit if such violation has a substantial

  3  likelihood of endangering human health, animal or plant life,

  4  or property; or

  5         c.  In knowing violation of any material condition or

  6  requirement of any applicable rule or standard if such

  7  violation has a substantial likelihood of endangering human

  8  health, animal or plant life, or property;

  9         3.  Makes any false statement or representation or

10  knowingly omits material information in any hazardous waste

11  application, label, manifest, record, report, permit, or other

12  document required by this act;

13         4.  Generates, stores, treats, transports, disposes of,

14  or otherwise handles any hazardous waste and who knowingly

15  destroys, alters, conceals, or fails to file any record,

16  application, manifest, report, or other document required to

17  be maintained or filed for purposes of compliance with this

18  act; or

19         5.  Transports without a manifest, or causes to be

20  transported without a manifest, any hazardous waste required

21  by rules adopted by the department to be accompanied by a

22  manifest

23

24  is, upon conviction, guilty of a felony of the third degree,

25  punishable for the first such conviction by a fine of not more

26  than $50,000 for each day of violation or imprisonment not to

27  exceed 5 years, or both, and for any subsequent conviction by

28  a fine of not more than $100,000 per day of violation or

29  imprisonment of not more than 10 years, or both.

30         (c)1.  As used in this paragraph, "Class II violation"

31  means a violation of this part, or the rules promulgated

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  1  pursuant to this part, which pertains to small quantity

  2  generators as defined by applicable department rules and which

  3  does not result in a discharge or serious threat of a

  4  discharge of hazardous waste to the environment, or does not

  5  involve the failure to ensure that groundwater will be

  6  protected or that hazardous waste will be destined for and

  7  delivered to permitted facilities.  Class II violations shall

  8  include, but need not be limited to, the failure to submit

  9  manifest exception reports in a timely manner, failure to

10  provide a generator's United States Environmental Protection

11  Agency identification number on the manifest, failure to

12  maintain complete personnel training records, and failure to

13  meet inspection schedule requirements for tanks and containers

14  that hold hazardous waste.

15         2.  In addition to any other judicial or administrative

16  remedy authorized by this part, the department may assess a

17  noncompliance fee for any Class II violation by a small

18  quantity generator.  For the first and second violations, the

19  fee shall not be assessed until the generator has failed to

20  comply after notice of noncompliance and has been given a

21  reasonable time to comply. If the owner or operator fails

22  after three or more notifications to comply with the

23  requirement to correct the Class II violation, the department

24  may assess the fee without waiting for compliance.

25         3.  At the time of assessment of a noncompliance fee,

26  the department shall give the small quantity generator written

27  notice setting forth the amount assessed, the specific

28  provision of law, rule, or order alleged to be violated, the

29  facts alleged to constitute the violation, the corrective

30  action needed to bring the party into compliance, and the

31  rights available under chapter 120 to challenge the

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  1  assessment.  The assessment shall be final and effective

  2  unless an administrative proceeding is requested within 20

  3  days after receipt of the written notice, and shall be

  4  enforceable pursuant to s. 120.69.  Once the assessment has

  5  become final and effective, the department shall refuse to

  6  issue, modify, transfer, or renew a permit or issue an

  7  identification number to the facility until the fee has been

  8  paid.

  9         4.  Before assessing any noncompliance fee, the

10  department shall adopt rules to implement the provisions of

11  this paragraph, which shall include a description of

12  activities that constitute Class II violations and the setting

13  of appropriate amounts for the noncompliance fees, based upon

14  the type of violation, but not to exceed $250.  Total

15  noncompliance fees assessed shall not exceed $1,000 per

16  assessment for all violations attributable to a specific

17  facility during any one month.

18         5.  The department's assessment of a noncompliance fee

19  shall be in lieu of any civil action that may be instituted by

20  the department in a court of competent jurisdiction to impose

21  and recover civil penalties for any violation that resulted in

22  the fee assessment, unless the department initiates a civil

23  action for nonpayment of a fee properly assessed pursuant to

24  this paragraph.

25         6.  Noncompliance fees collected pursuant to this

26  paragraph shall be deposited in the Ecosystem Management and

27  Restoration Trust Fund.  The department may use a portion of

28  the fund to contract for services to help in the collection of

29  fees assessed pursuant to this paragraph.

30         Section 9.  Subsections (5), (6), and (7) of section

31  403.860, Florida Statutes, are amended to read:

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  1         403.860  Penalties and remedies.--

  2         (5)  In addition to any judicial or administrative

  3  remedy authorized by this part, the department or a county

  4  health department that has received approval by the department

  5  pursuant to s. 403.862(1)(c) may assess administrative

  6  penalties for violations of this section in accordance with s.

  7  403.121. a noncompliance fee for failure of any supplier of

  8  water of a public water system to comply with department

  9  requirements for the reporting, in the manner and time

10  provided by department rule, of test results for

11  microbiological, inorganic, or organic contaminants; or

12  turbidity, radionucleides, or secondary standards.

13         (a)  For the first and second violations of the

14  microbiological reporting requirements, and for the first

15  violation of other reporting requirements, the fee shall not

16  be assessed until the department has given the supplier at

17  least 30 days to comply with the reporting requirement.  The

18  time shall not begin until the department has given the

19  supplier written notice of the facts alleged to constitute the

20  reporting violation, the specific provision of law, rule, or

21  order alleged to have been violated by the owner or operator,

22  the corrective action needed to bring the facility into

23  compliance, and the potential penalties that may be imposed as

24  a result of the supplier's failure to comply with the notice.

25  For subsequent violations of the microbiological reporting

26  requirements, the department does not have to provide 30-day

27  written notice of the violations prior to assessing a

28  noncompliance fee, provided, however, that if any additional

29  reporting violations occur prior to the expiration of either

30  30-day notice issued by the department, the department must

31  provide the supplier with a 30-day written notice to correct

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  1  those violations as well. Upon expiration of 36 months, the

  2  department shall reinstate the 30-day notice requirements

  3  provided in this subsection prior to assessing a noncompliance

  4  fee.

  5         (b)  At the time of assessment of a noncompliance fee,

  6  the department shall give the supplier written notice setting

  7  forth the amount assessed, the specific provision of law,

  8  rule, or order alleged to be violated, the facts alleged to

  9  constitute the violation, the corrective action needed to

10  bring the party into compliance, and the rights available

11  under chapter 120 to challenge the assessment.  The assessment

12  shall be final and effective unless an administrative

13  proceeding is requested within 20 days after receipt of the

14  written notice, and shall be enforceable pursuant to s.

15  120.69.

16         (c)  Before assessing a noncompliance fee, the

17  department shall adopt rules to implement the provisions of

18  this subsection. The rules shall establish specific procedures

19  and assessment amounts for noncompliance fees authorized by

20  paragraph (a). Noncompliance fees shall be set on a sliding

21  scale based upon the type of violation, the degree of

22  noncompliance, and the potential for harm.  Such rules shall

23  also authorize the application of adjustment factors

24  subsequent to initial assessment to increase or decrease the

25  total amount assessed, such as the good faith efforts or the

26  lack of good faith efforts of the supplier to comply with the

27  reporting requirements, the lack of or degree of willfulness

28  or negligence on the part of the supplier, the economic

29  benefits associated with the supplier's failure to comply with

30  the reporting violation, the supplier's previous history of

31

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  1  reporting violations, and the supplier's ability to pay the

  2  noncompliance fee.

  3         (d)  For microbiological reporting requirements, no

  4  noncompliance fee shall exceed $250, and total noncompliance

  5  fees assessed shall not exceed $1,000 per assessment for all

  6  reporting violations attributable to a specific facility

  7  during any one month.

  8         (e)  For violations of reporting requirements other

  9  than microbiological, the fee shall be no greater than $50 per

10  day for each day of violation, and the total amount assessed

11  shall not exceed $2,000.

12         (f)  The department's assessment of a noncompliance fee

13  shall be in lieu of any civil action which may be instituted

14  by the department in a court of competent jurisdiction to

15  impose and recover civil penalties for any violation that

16  resulted in the fee assessment, unless the department

17  initiates a civil action for nonpayment of a fee properly

18  assessed pursuant to this subsection.

19         (g)  No noncompliance fee may be assessed unless the

20  department has, within 90 days of the reporting violation,

21  provided the supplier written notice of the violation.

22         (6)  The department is authorized to assess

23  administrative penalties for failure to comply with the

24  requirements of the Florida Safe Drinking Water Act.

25         (a)  Prior to the assessment of an administrative

26  penalty, the department shall provide the public water system

27  a reasonable amount of time to complete the corrective action

28  necessary to bring the system back into compliance.

29         (b)1.  At the time of assessment of the administrative

30  penalty, the department shall give the public water system

31  notice setting forth the amount assessed, the specific

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  1  provision of law, rule, or order alleged to be violated, the

  2  facts alleged to constitute the violation, the corrective

  3  action needed to bring the party into compliance, and the

  4  rights available under chapter 120 to challenge the

  5  assessment.  The assessment shall be final and effective,

  6  unless an administrative hearing is requested within 20 days

  7  after receipt of the written notice, and shall be enforceable

  8  pursuant to s. 120.69.

  9         2.  The department shall adopt rules to implement the

10  provisions of this subsection.  The rules shall establish

11  specific procedures for implementing the penalties and shall

12  identify assessment amounts.  The rules shall authorize the

13  application of adjustment factors for the purpose of

14  increasing or decreasing the total amount assessed subsequent

15  to initial assessment. Such factors may include the lack or

16  degree of good faith to comply with the requirements, the lack

17  or degree of willfulness or negligence on the part of the

18  owner, the compliance history of the public water system, the

19  economic benefit derived by the failure to comply with the

20  requirements, and the ability to pay.

21         (c)  The amount of the penalties assessed shall be as

22  follows:

23         1.  In the case of a public water system serving a

24  population of more than 10,000, the penalty shall be not less

25  than $1,000 per day per violation.

26         2.  In the case of any other public water system, the

27  penalty shall be adequate to ensure compliance.

28

29  However, the total amount of the penalty assessed on any

30  public water system may not exceed $10,000 per violation.

31

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  1         (6)(7)  Fees collected pursuant to this section shall

  2  be deposited in the Water Quality Assurance Trust Fund or the

  3  appropriate County Health Department Trust Fund, in accordance

  4  with s. 381.0063, to be used to carry out the provisions of

  5  this part.  The department may use a portion of the fund to

  6  contract for services to help collect noncompliance fees

  7  assessed pursuant to this section.

  8         Section 10.  This act shall take effect August 1, 2000.

  9

10            *****************************************

11                          SENATE SUMMARY

12    Revises specified schedules of administrative penalties
      assessable by the Department of Environmental Protection.
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