Senate Bill sb1664
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Florida Senate - 2001 SB 1664
By Senator Laurent
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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
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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
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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.
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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).
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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),
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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.
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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.
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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.
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14 SENATE SUMMARY
15 Revises judicial and administrative remedies for
violations of environmental control laws. (See bill for
16 details.)
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