Senate Bill sb1664

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    Florida Senate - 2001                                  SB 1664

    By Senator Laurent





    17-838-01

  1                      A bill to be entitled

  2         An act relating to environmental control;

  3         amending s. 369.25, F.S.; granting the

  4         Department of Environmental Protection

  5         additional enforcement powers for aquatic plant

  6         control; amending s. 373.129, F.S.; providing

  7         additional enforcement authority over surface

  8         waters; creating s. 373.437, F.S.; authorizing

  9         water management districts to assess

10         administrative penalties; amending s. 377.37,

11         F.S.; providing for assessment of

12         administrative penalties; amending s. 378.211,

13         F.S.; revising administrative penalties;

14         amending ss. 403.121, 403.131, 403.860, F.S.;

15         revising judicial and administrative remedies

16         for violations of environmental laws; requiring

17         the Department of Environmental Protection to

18         report to the Legislature; repealing s.

19         403.727(3)(c), F.S., which provides for

20         noncompliance fees for Class II violations;

21         providing an effective date.

22

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

24

25         Section 1.  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

31

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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 2.  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)  To enforce the provisions of part IV of this

14  chapter in the same manner and to the same extent as provided

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

16  and 403.161.

17         Section 3.  Section 373.937, Florida Statutes, is

18  created to read:

19         373.437  Administrative penalties.--The governing board

20  may assess administrative penalties in the same manner and to

21  the same extent as provided in s. 403.121.

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

23  377.37, Florida Statutes, is amended to read:

24         377.37  Penalties.--

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

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

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

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

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

30  operator of equipment or facilities used in the exploration

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

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  1  petroleum products who refuses inspection by the division as

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

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

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

  5  reasonable costs and expenses of the state in tracing the

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

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

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

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

10  operator is subject to the judicial imposition of a civil

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

12  offense. However, the court may receive evidence in

13  mitigation. Each day during any portion of which such

14  violation occurs constitutes a separate offense. The

15  department shall assess administrative penalties for

16  violations of this chapter in accordance with s. 403.121.

17  Penalties collected under this subsection must be deposited in

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

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

20  the administrative penalties assessed under this subsection.

21  Nothing herein shall give the department the right to bring an

22  action on behalf of any private person.

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

24  Statutes, is amended to read:

25         378.211  Violations; damages; penalties.--

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

27  court of competent jurisdiction or an administrative action

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

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

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

31

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  1  following amounts, and the court shall consider evidence in

  2  mitigation:

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

  4  $100 per violation.

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

  6  penalty has not been imposed under this paragraph during the

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

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

  9  $5,000 per violation.

10

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

12  portion thereof in which the violation continues shall

13  constitute a separate violation.

14         Section 6.  Section 403.121, Florida Statutes, is

15  amended to read:

16         403.121  Enforcement; procedure; remedies.--The

17  department shall have the following judicial and

18  administrative remedies available to it for violations of this

19  chapter, as specified in s. 403.161(1).

20         (1)  Judicial remedies:

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

22  court of competent jurisdiction to establish liability and to

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

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

25  state caused by any violation.

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

27  court of competent jurisdiction to impose and to recover a

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

29  $10,000 per offense.  However, the court may receive evidence

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

31  violation occurs constitutes a separate offense.

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  1         (c)  Except as provided in paragraph (2)(c), it shall

  2  not be a defense to, or ground for dismissal of, these

  3  judicial remedies for damages and civil penalties that the

  4  department has failed to exhaust its administrative remedies,

  5  has failed to serve a notice of violation, or has failed to

  6  hold an administrative hearing prior to the institution of a

  7  civil action.

  8         (2)  Administrative remedies:

  9         (a)  The department may institute an administrative

10  proceeding to establish liability and to recover damages for

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

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

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

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

15  determined by the department may be entered in any court

16  having jurisdiction thereof and may be enforced as any other

17  judgment.

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

19  violation has occurred, it may institute an administrative

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

21  the conditions creating the violation or other appropriate

22  corrective action. Except for violations involving hazardous

23  wastes, asbestos, or underground injection, the department

24  shall proceed administratively in all cases in which the

25  department seeks administrative penalties that do not exceed

26  $10,000 per assessment as calculated in accordance with

27  subsections (3), (4), (5), (6), and (7). The department may

28  not impose administrative penalties in excess of $10,000 in a

29  notice of violation. The department may not have more than one

30  notice of violation seeking administrative penalties pending

31  against the same party at the same time unless the violations

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  1  occurred at different sites or later violations were

  2  discovered by the department after the filing of the previous

  3  notice of violation.

  4         (c)  An administrative proceeding shall be instituted

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

  6  upon the alleged violator by certified mail. If the department

  7  is unable to effect service by certified mail, the notice of

  8  violation may be hand-delivered or personally served in

  9  accordance with chapter 48. The notice shall specify the

10  provision of the law, rule, regulation, permit, certification,

11  or order of the department alleged to be violated and the

12  facts alleged to constitute a violation thereof. An order for

13  corrective action, penalty assessment, or damages may be

14  included with the notice. When the department is seeking to

15  impose an administrative penalty for certain violations by

16  issuing a notice of violation, any corrective actions or

17  damages associated with those violations must be pursued in

18  the notice of violation or they are waived. However, no order

19  shall become effective until after service and an

20  administrative hearing, if requested within 20 days after

21  service. Failure to request an administrative hearing within

22  this time period constitutes shall constitute a waiver

23  thereof.

24         (d)  If a person timely files a petition challenging a

25  notice of violation, the hearing must be held within 180 days

26  after the department has referred the initial petition to the

27  Division of Administrative Hearings unless the parties agree

28  to a later date. The department bears the burden of proving by

29  a preponderance of the evidence that the petitioner caused the

30  violation. Administrative penalties should not be imposed

31  unless the department satisfies that burden. Following the

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  1  close of the hearing, the administrative law judge shall issue

  2  a final order on all matters, including the imposition of an

  3  administrative penalty. When the department seeks to enforce

  4  that portion of a final order imposing administrative

  5  penalties under s. 120.69, the respondent may not assert as a

  6  defense the inappropriateness of the administrative remedy.

  7  The department retains its final-order authority in all

  8  administrative actions that do not request the imposition of

  9  administrative penalties.

10         (e)  If the department imposes an administrative

11  penalty in a notice of violation, a petitioner may request

12  that a private mediator be appointed to mediate the dispute by

13  contacting the Florida Conflict Resolution Consortium within

14  10 days after receipt of the Initial Order from the

15  administrative law judge. The Florida Conflict Resolution

16  Consortium shall pay all of the costs of the mediator and for

17  up to 8 hours of the mediator's time per case at $150 per

18  hour. Upon notice from the petitioner, the Florida Conflict

19  Resolution Consortium shall provide to the petitioner a panel

20  of possible mediators from the area in which the hearing on

21  the petition would be heard. The petitioner shall select the

22  mediator and notify the Florida Conflict Resolution Consortium

23  of the selection within 15 days after receipt of the proposed

24  panel of mediators. The Florida Conflict Resolution Consortium

25  shall provide the administrative support for the mediation

26  process. The mediation must be completed at least 15 days

27  before the final-hearing date set by the administrative law

28  judge.

29         (f)  In any administrative proceeding brought by the

30  department, the prevailing party shall recover all costs as

31  provided in ss. 57.041 and 57.071. The costs must be included

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  1  in the final order. The petitioner is the prevailing party

  2  when an order is entered awarding no penalties to the

  3  department and either the order has not been reversed on

  4  appeal or the order has not been appealed and the time for

  5  seeking judicial review has expired. The petitioner is

  6  entitled to an award of attorney's fees if the administrative

  7  law judge determines that the department initiated the notice

  8  of violation seeking the imposition of administrative

  9  penalties for an improper purpose as defined in s.

10  120.595(1)(e)1. An award of attorney's fees as provided by

11  this subsection may not exceed $15,000.

12         (g)(d)  Nothing herein shall be construed as preventing

13  any other legal or administrative action in accordance with

14  law. This subsection does not limit the department's authority

15  provided in ss. 403.121, 403.131, and 403.141, to judicially

16  pursue injunctive relief or damages or to enter into a

17  settlement, either before or after initiating a notice of

18  violation. A settlement may include a penalty amount that

19  departs from the administrative penalty schedule. The

20  department also retains the authority to judicially pursue

21  penalties in excess of $10,000 for violations not specifically

22  identified in the administrative penalty schedule, or for

23  multiple or multi-day violation alleged to exceed a total of

24  $10,000. Any case filed in state court because the penalties

25  are alleged to exceed a total of $10,000 may be settled in the

26  court action for less than $10,000.

27         (3)  Except for violations involving hazardous wastes,

28  asbestos, or underground injection, administrative penalties

29  must be calculated according to the following schedule:

30         (a)  For a drinking water contamination violation, the

31  department shall assess a penalty of $2,000 for a Maximum

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  1  Containment Level violation, plus $1,000 if the violation is

  2  for a primary inorganic, organic, or radiological Maximum

  3  Contaminant Level or if it is a fecal coliform bacteria

  4  violation; plus $1,000 if the violation occurs at a community

  5  water system; and plus $1,000 if any Maximum Contaminant Level

  6  is exceeded by more than 100 percent.

  7         (b)  For a domestic or industrial wastewater violation

  8  not involving a violation of surfacewater or groundwater

  9  quality, the department shall assess a penalty of $2,000 for

10  an unpermitted or unauthorized discharge or

11  effluent-limitation exceedance, plus $1,000 if the discharge

12  was from a Type I facility. For an unpermitted or unauthorized

13  discharge or effluent-limitation exceedance that resulted in a

14  violation of surfacewater or groundwater quality, the

15  department shall assess a penalty of $4,000, plus $1,000 if

16  the discharge was from a Type I facility.

17         (c)  For a dredge and fill or stormwater violation, the

18  department shall assess a penalty of $1,000 for unpermitted or

19  unauthorized dredging or filling against the persons

20  responsible for the illegal dredging or filling, plus $2,000

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

22  Aquatic Preserve, Outstanding Florida Water, or Class I or

23  Class II surfacewater, plus $1,000 if the area dredged or

24  filled is between one-quarter acre and one-half acre, and plus

25  $1,000 if the area dredged or filled is between one-half acre

26  and one acre. The administrative penalty schedule does not

27  apply to a dredge and fill violation if the area dredged or

28  filled exceeds one acre. The department retains the authority

29  to seek the judicial imposition of civil penalties for all

30  dredge and fill violations involving more than one acre. The

31  department shall assess a penalty of $3,000 for the failure to

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  1  complete required mitigation or failure to record a required

  2  conservation easement or for a turbidity violation. The

  3  department shall assess a penalty of $2,000 for the failure to

  4  property construct a stormwater management system within the

  5  designated time and shall assess a penalty of $1,500 for

  6  violations of surfacewater quality which are caused by

  7  stormwater construction activities or failure of a stormwater

  8  treatment facility. In addition to the other penalties

  9  authorized in this paragraph, the department shall assess a

10  penalty of $5,000 per day per violation against the contractor

11  or agent of the owner or tenant that conducts unpermitted or

12  unauthorized dredging or filling.

13         (d)  For a first-time mangrove trimming or altering

14  violation, the department shall assess a penalty of $1,000 for

15  the alteration of less than 100 square feet of mangroves, or

16  the trimming of less than 500 square feet of mangroves; $2,000

17  for the alteration of 100 to 500 square feet of mangroves, or

18  trimming of 500 to 1,000 square feet of mangroves; $3,500 for

19  the alteration of 500 to 1,000 square feet of mangroves, or

20  the trimming of 1,000 to 5,000 square feet of mangroves; or

21  $5,000 for the alteration of over 1,000 square feet of

22  mangroves, or the trimming of over 5,000 square feet of

23  mangroves. In addition to the other penalties authorized in

24  this paragraph, the department shall assess a penalty of

25  $5,000 per day per violation against the contract or agent of

26  the owner or tenant that conducts unpermitted or unauthorized

27  mangrove trimming or alteration. For a second or subsequent

28  mangrove trimming or alteration violation, in addition to this

29  schedule of penalties, additional penalties shall be imposed

30  as provided in s. 403.9332(3).

31

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  1         (e)  For solid waste violations, the department shall

  2  assess a penalty of $2,000 for the unpermitted or unauthorized

  3  disposal or storage of solid waste; plus $1,000 if the solid

  4  waste is Class I or Class III (excluding yard trash) or if the

  5  solid waste is construction and demolition debris in excess of

  6  20 cubic yards, plus $1,000 if the waste is disposed of or

  7  stored in any natural or artificial body of water or within

  8  500 feet of a potable water well, plus $1,000 if the waste

  9  contains PCB at a concentration of 50 parts per million or

10  greater; untreated biomedical waste; friable asbestos greater

11  than 1 cubic meter which is not wetted, bagged, and covered;

12  used oil greater than 25 gallons; or 10 or more lead acid

13  batteries. The department shall assess a penalty of $3,000 for

14  failure to properly maintain leachate control; unauthorized

15  burning; failure to have a trained spotter on duty during

16  operation; failure to provide access control for three

17  consecutive inspections; or failure to construct or maintain a

18  required stormwater management system.

19         (f)  For an air emission violation, the department

20  shall assess a penalty of $1,000 for an unpermitted or

21  unauthorized air emission or an air-emission-permit

22  exceedance, plus $1,000 if the emission results in an air

23  quality violation, plus $3,000 if the emission was from a

24  major source, plus $1,000 if the emission was more than 150

25  percent of the allowable level.

26         (g)  For storage tank system and petroleum discharge or

27  release violations, the department shall assess a penalty of

28  $5,000 for failure to take a storage tank system out of

29  service until repairs are completed when a release has

30  occurred from that storage tank system; for failure to timely

31  recover free product; or for failure to conduct remediation or

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  1  monitoring activities until a no-further-action or

  2  site-rehabilitation completion order has been issued. The

  3  department shall assess a penalty of $3,000 for failure to

  4  timely upgrade a storage tank system. The department shall

  5  assess a penalty of $2,000 for failure to conduct or maintain

  6  required release detection; for failure to timely investigate

  7  a suspected release from a storage tank system; for depositing

  8  motor fuel into an unregistered storage tank; or for failure

  9  to properly install a storage tank system. The department

10  shall assess a penalty of $1,000 for failure to properly

11  operate, maintain, or close a storage tank system.

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

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

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

15  domestic wastewater treatment facility to comply with a permit

16  condition that requires the submittal of monthly operating

17  reports or the reporting of the characteristics of the waste

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

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

20  requirements, the fee shall not be assessed until the

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

22  comply with the reporting requirement.  The time shall not

23  begin until the department has given the owner or operator

24  written notice of the facts alleged to constitute the

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

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

27  the corrective action needed to bring the facility into

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

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

30  the notice.  For subsequent violations, the department does

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

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

  3         1.  If any additional reporting violations occur prior

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

  5  the department, the department must provide the owner or

  6  operator with 30 days' written notice to correct these

  7  violations as well.

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

  9  shall reinstate the 30-day notice requirements provided in

10  this subsection prior to assessing a noncompliance fee during

11  the new permit period.

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

13  the department shall give the owner or operator written notice

14  setting forth the amount assessed, the specific provision of

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

16  to constitute the violation, the corrective action needed to

17  bring the party into compliance, and the rights available

18  under chapter 120 to challenge the assessment.  The assessment

19  shall be final and effective unless an administrative

20  proceeding is requested within 20 days after receipt of the

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

22  120.69.  Once the assessment has become final and effective,

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

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

25         (c)  Before assessing a noncompliance fee, the

26  department shall adopt rules to implement the provisions of

27  this subsection. The rules shall establish specific procedures

28  and assessment amounts for noncompliance fees authorized by

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

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

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

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  1  also authorize the application of adjustment factors

  2  subsequent to the initial assessment to increase or decrease

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

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

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

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

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

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

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

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

11  noncompliance fee shall exceed $250, and total noncompliance

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

13  reporting violations attributable to a specific facility

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

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

16  violation, provided the owner or operator written notice of

17  the violation.

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

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

20  by the department in a court of competent jurisdiction to

21  impose and recover civil penalties for any violation that

22  resulted in the fee assessment, unless the department

23  initiates a civil action for nonpayment of a fee properly

24  assessed pursuant to this subsection.

25         (e)  Fees collected pursuant to this subsection shall

26  be deposited in the Ecosystem Management and Restoration Trust

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

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

29  assessed pursuant to this subsection.

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

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

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  1  department shall assess administrative penalties according to

  2  the following schedule:

  3         (a)  For failure to satisfy financial responsibility

  4  requirements or for violation of s. 377.371(1), $5,000.

  5         (b)  For failure to install, maintain, or use a

  6  required pollution control system or device, $4,000.

  7         (c)  For failure to obtain a required permit not

  8  otherwise addressed in subsection (3), $3,000.

  9         (d)  For failure to conduct required monitoring or

10  testing; failure to conduct required release detection;

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

12  a specific permit condition not otherwise identified in this

13  section; or failure to plug oil, gas, injection, or disposal

14  wells, $2,000.

15         (e)  For failure to maintain required staff to respond

16  to emergencies; failure to conduct required training; failure

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

18  failure to adequately respond to emergencies to bring an

19  emergency situation under control; failure to comply with

20  geophysical seismic-line-safety onsite reclamation

21  requirements; or failure to submit required notification to

22  the department, $1,000.

23         (f)  For failure to prepare, submit, maintain, or use

24  required reports or other required documentation, $500.

25         (5)  For failure to comply with any other departmental

26  regulatory statute or rule requirement not otherwise

27  identified in this section, the department may assess a

28  penalty of $500.

29         (6)  For each additional day during which a violation

30  occurs, the administrative penalties in subsection (3),

31

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  1  subsection (4), or subsection (5) may be assessed per day per

  2  violation.

  3         (7)  Given a history of noncompliance of the violator

  4  for any previous violation identified in subsection (3) or

  5  subsection (4) in the $2,000 and other categories resulting in

  6  an executed consent order, final order or judgment must be

  7  made in the following manner:

  8         (a)  One previous violation within 5 years before the

  9  filing of the notice of violation will result in a 25 percent

10  per day increase in the scheduled administrative penalty.

11         (b)  Two previous violations within 5 years before the

12  filing of the notice of violation will result in a 50 percent

13  per day increase in the scheduled administrative penalty.

14         (c)  Three or more previous violations within 5 years

15  before the filing of the notice of violation will result in a

16  100 percent per day increase in the scheduled administrative

17  penalty.

18         (8)  The administrative penalties assessed for any

19  particular violation may not exceed $5,000 against any one

20  violator, unless the violator has a history of noncompliance,

21  the economic benefit of the violation to the violator exceeds

22  $5,000, or there are multi-day violations. The total

23  administrative penalties may not exceed $10,000 per assessment

24  for all violations attributable to a specific person in the

25  notice of violation.

26         (9)  The administrative law judge may receive evidence

27  in mitigation. The penalties identified in subsection (3),

28  subsection (4), or subsection (5) may be reduced up to 50

29  percent by the administrative law judge for mitigating

30  circumstances.

31

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  1         (10)  Penalties collected under this subsection must be

  2  deposited in the Ecosystem Management and Restoration Trust

  3  Fund or other trust fund designated by statute. The Florida

  4  Conflict Resolution Consortium may use a portion of the fund

  5  to administer the mediation process provided in paragraph

  6  (2)(e) and to contract with private mediators for

  7  administrative penalty cases.

  8         (11)  The purpose of the administrative penalty

  9  schedule and process is to provide a more predictable and

10  efficient manner by which individuals and businesses can

11  resolve minor environmental disputes. Subsection (3),

12  subsection (4), subsection (5), subsection (6), or subsection

13  (7) shall not be considered as limiting a state court in its

14  assessment of a civil penalty or in the assessment of damages.

15         Section 7.  Section 403.131, Florida Statutes, is

16  amended to read:

17         403.131  Injunctive relief, cumulative remedies.--

18         (1)  The department may institute a civil action in a

19  court of competent jurisdiction to seek injunctive relief to

20  enforce compliance with this chapter or any rule, regulation,

21  permit certification, or order; to enjoin any violation

22  specified in s. 403.161(1); and to seek injunctive relief to

23  prevent irreparable injury to the air, waters, and property,

24  including animal, plant, and aquatic life, of the state and to

25  protect human health, safety, and welfare caused or threatened

26  by any violation.

27         (2)  All the judicial and administrative remedies to

28  recover damages and penalties in this section and s. 403.121

29  are independent and cumulative except that the judicial and

30  administrative remedies to recover damages are alternative and

31  mutually exclusive.

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  1         Section 8.  Subsections (5) and (6) of section 403.860,

  2  Florida Statutes, are amended to read:

  3         403.860  Penalties and remedies.--

  4         (5)  In addition to any judicial or administrative

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

  6  health department that has received approval by the department

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

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

  9  403.121 a noncompliance fee for failure of any supplier of

10  water of a public water system to comply with department

11  requirements for the reporting, in the manner and time

12  provided by department rule, of test results for

13  microbiological, inorganic, or organic contaminants; or

14  turbidity, radionucleides, or secondary standards.

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

16  microbiological reporting requirements, and for the first

17  violation of other reporting requirements, the fee shall not

18  be assessed until the department has given the supplier at

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

20  time shall not begin until the department has given the

21  supplier written notice of the facts alleged to constitute the

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

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

24  the corrective action needed to bring the facility into

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

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

27  For subsequent violations of the microbiological reporting

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

29  written notice of the violations prior to assessing a

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

31  reporting violations occur prior to the expiration of either

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  1  30-day notice issued by the department, the department must

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

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

  4  department shall reinstate the 30-day notice requirements

  5  provided in this subsection prior to assessing a noncompliance

  6  fee.

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

  8  the department shall give the supplier written notice setting

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

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

11  constitute the violation, the corrective action needed to

12  bring the party into compliance, and the rights available

13  under chapter 120 to challenge the assessment.  The assessment

14  shall be final and effective unless an administrative

15  proceeding is requested within 20 days after receipt of the

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

17  120.69.

18         (c)  Before assessing a noncompliance fee, the

19  department shall adopt rules to implement the provisions of

20  this subsection. The rules shall establish specific procedures

21  and assessment amounts for noncompliance fees authorized by

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

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

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

25  also authorize the application of adjustment factors

26  subsequent to initial assessment to increase or decrease the

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

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

29  reporting requirements, the lack of or degree of willfulness

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

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

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

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

  3  noncompliance fee.

  4         (d)  For microbiological reporting requirements, no

  5  noncompliance fee shall exceed $250, and total noncompliance

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

  7  reporting violations attributable to a specific facility

  8  during any one month.

  9         (e)  For violations of reporting requirements other

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

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

12  shall not exceed $2,000.

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

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

15  by the department in a court of competent jurisdiction to

16  impose and recover civil penalties for any violation that

17  resulted in the fee assessment, unless the department

18  initiates a civil action for nonpayment of a fee properly

19  assessed pursuant to this subsection.

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

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

22  provided the supplier written notice of the violation.

23         (6)  The department is authorized to assess

24  administrative penalties for failure to comply with the

25  requirements of the Florida Safe Drinking Water Act.

26         (a)  Prior to the assessment of an administrative

27  penalty, the department shall provide the public water system

28  a reasonable amount of time to complete the corrective action

29  necessary to bring the system back into compliance.

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

31  penalty, the department shall give the public water system

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  1  notice setting forth the amount assessed, the specific

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

  3  facts alleged to constitute the violation, the corrective

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

  5  rights available under chapter 120 to challenge the

  6  assessment.  The assessment shall be final and effective,

  7  unless an administrative hearing is requested within 20 days

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

  9  pursuant to s. 120.69.

10         2.  The department shall adopt rules to implement the

11  provisions of this subsection.  The rules shall establish

12  specific procedures for implementing the penalties and shall

13  identify assessment amounts.  The rules shall authorize the

14  application of adjustment factors for the purpose of

15  increasing or decreasing the total amount assessed subsequent

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

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

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

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

20  economic benefit derived by the failure to comply with the

21  requirements, and the ability to pay.

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

23  follows:

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

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

26  than $1,000 per day per violation.

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

28  penalty shall be adequate to ensure compliance.

29

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

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

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  1         Section 9.  Two years after the effective date of this

  2  act, the Department of Environmental Protection shall submit a

  3  report to the Legislature describing the number of notices of

  4  violation issued by the department seeking the imposition of

  5  administrative penalties, the amount of administrative

  6  penalties obtained by the department, and the efficiencies

  7  gained from the provisions of this act.

  8         Section 10.  Paragraph (c) of subsection (3) of section

  9  403.727, Florida Statutes, is repealed.

10         Section 11.  This act shall take effect upon becoming a

11  law.

12

13            *****************************************

14                          SENATE SUMMARY

15    Revises judicial and administrative remedies for
      violations of environmental control laws. (See bill for
16    details.)

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