House Bill hb0609

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    Florida House of Representatives - 2002                 HB 609

        By Representative Ryan






  1                      A bill to be entitled

  2         An act relating to environmental regulation;

  3         creating s. 403.08761, F.S.; creating the

  4         "Florida Performance-Based Permitting Act";

  5         creating s. 403.08762, F.S.; providing

  6         legislative findings and public purpose;

  7         creating s. 403.08763, F.S.; establishing the

  8         performance-based permitting program for

  9         regulated activities under ch. 161, F.S.,

10         relating to beach and shore preservation, pt.

11         IV of ch. 373, F.S., relating to management and

12         storage of surface waters, ch. 376, F.S.,

13         relating to pollutant discharge and removal,

14         and ch. 403, F.S., relating to environmental

15         control; providing definitions; requiring the

16         Department of Environmental Protection to

17         consider the compliance history of permit

18         applicants; providing categories of violations;

19         providing relevant compliance history criteria;

20         providing for burden of proof with respect to

21         civil violations; providing factors to consider

22         with respect to evaluation of an applicant's

23         compliance history; providing for possible

24         departmental actions in response to a permit

25         application; providing conditions for permit

26         denial or conditional issuance of a permit;

27         authorizing applicants to propose an

28         environmental management system as part of a

29         permit application or modification; providing

30         for the creation of forms and for submission of

31         specified information; providing for compliance

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  1         incentives, effective July 1, 2005, for

  2         applicants who meet certain criteria;

  3         authorizing the adoption of rules; providing

  4         specified notification requirements with

  5         respect to formal enforcement actions;

  6         providing that an agency may continue to

  7         evaluate compliance history based on other

  8         provisions of law until July 1, 2005; providing

  9         that, beginning July 1, 2005, the act

10         supersedes all other provisions of law

11         authorizing an agency to consider the

12         compliance history of applicants for permits

13         other than general permits; amending s.

14         403.087, F.S.; revising conditions under which

15         the department shall issue a permit to

16         construct, operate, maintain, expand, or modify

17         an installation which may reasonably be

18         expected to be a source of pollution; providing

19         that an applicant's compliance history shall be

20         a factor in determining whether the applicant

21         has provided specified reasonable assurance;

22         amending s. 373.413, F.S.; providing for

23         applicability of the performance-based

24         permitting program to permits for the

25         construction or alteration of any stormwater

26         management system, dam, impoundment, reservoir,

27         or appurtenant work or works, other than

28         general permits, under pt. IV of ch. 373, F.S.,

29         relating to management and storage of surface

30         waters; amending s. 161.041, F.S.; providing

31         for applicability of the performance-based

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  1         permitting program to all permits issued under

  2         ch. 161, F.S., relating to beach and shore

  3         preservation; providing an effective date.

  4

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

  6

  7         Section 1.  Section 403.08761, Florida Statutes, is

  8  created to read:

  9         403.08761  Short title.--Sections 403.08761-403.08763

10  may be cited as the "Florida Performance-Based Permitting

11  Act."

12         Section 2.  Section 403.08762, Florida Statutes, is

13  created to read:

14         403.08762  Legislative findings; public purpose.--

15         (1)  The Legislature finds and declares that:

16         (a)  Permit applicants with a history of compliance

17  with environmental laws should be eligible for longer permits,

18  short-form permit renewals, and other incentives to reward and

19  encourage such applicants.

20         (b)  Permit applicants with a history of noncompliance

21  with environmental laws should be subject to more stringent

22  requirements, and in some cases such applicants should be

23  denied permits for an appropriate period of time.

24         (c)  Permit decisionmaking that considers past

25  compliance history and customizes the permit in recognition of

26  that history increases protection for the environment:

27         1.  Because it encourages compliance;

28         2.  By allowing the department to focus financial and

29  personnel resources on those few persons or entities subject

30  to regulation under this act with records of poor compliance;

31  and

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  1         3.  Because it allows permit applicants with

  2  satisfactory records to better focus their resources.

  3         (d)  In order to maximize the benefit of a permit

  4  decisionmaking process that recognizes an applicant's

  5  compliance history, the evaluation of that history should be

  6  conducted in a more clear, consistent, and predictable manner.

  7         (2)  It is therefore declared to be the purpose of this

  8  act to:

  9         (a)  Enhance the protection of the state's natural

10  resources by establishing and making available to those

11  persons and entities regulated under this act incentives to

12  encourage compliance and to reward those who meet or exceed

13  compliance requirements;

14         (b)  Provide the department with clear and specific

15  authority to consider the compliance history of permit

16  applicants and those who control the applicants when

17  evaluating reasonable assurance and when designing and

18  implementing its permitting programs;

19         (c)  Clearly define the extent to which the department

20  may consider compliance history in its permitting

21  decisionmaking; and

22         (d)  Promote objectivity and consistency in the

23  evaluation process throughout the state by establishing

24  criteria for the review of compliance history and by defining

25  the potential permitting consequences of compliance and

26  noncompliance with environmental laws.

27         Section 3.  Section 403.08763, Florida Statutes, is

28  created to read:

29         403.08763  Performance-based permitting program.--

30         (1)  DEFINITIONS.--As used in this section, the term:

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  1         (a)  "Applicant" means the proposed permittee, the

  2  owner, and the operator of a regulated activity seeking an

  3  agency permit. If the applicant has not held an agency permit

  4  during at least 4 of the 5 years preceding submission of the

  5  permit application, the term also includes any person who has

  6  the legal or actual authority to control the owner, operator,

  7  or permittee. The term also includes any person seeking the

  8  transfer of an agency permit, and, if such prospective

  9  transferee has not held an agency permit during at least 4 of

10  the 5 years preceding submission of the request to transfer

11  the permit, any person who has the legal or actual authority

12  to control the prospective transferee.

13         (b)  "Agency" means the Department of Environmental

14  Protection, the water management districts acting pursuant to

15  part IV of chapter 373, and local governments acting under a

16  delegation agreement with the department or a water management

17  district.

18         (c)  "Agency statutes" means chapter 161, part IV of

19  chapter 373, chapter 376, and chapter 403.

20         (d)  "Department" means the Department of Environmental

21  Protection.

22         (e)  "Environmental statutes" means any state or

23  federal statute that regulates activities for the purpose of

24  protecting the environment, but does not include any statute

25  that regulates activities only for purposes of zoning, growth

26  management, or land use.

27         (f)  "Reasonable assurance" means that there is a

28  substantial likelihood, although not an absolute guarantee,

29  that the proposed activity and the applicant will comply with

30  agency rules, statutes, orders, and permit conditions.

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  1         (g)  "Regulated activity" means any activity, including

  2  the construction or operation of a facility, installation,

  3  system, or project, for which a permit or certification is

  4  required under an agency statute.

  5         (h)  "Site" means a single parcel or multiple

  6  contiguous or adjacent parcels of land on which the applicant

  7  proposes to conduct, or has conducted, a regulated activity

  8  and includes any other contiguous parcels of land owned or

  9  controlled by the applicant. A site is considered a "new site"

10  if the applicant has not held an agency permit for a regulated

11  activity at that location for at least 4 of the 5 years

12  preceding submission of an application.

13         (2)  PERIOD OF REVIEW.--One factor in determining

14  whether a permit applicant has provided reasonable assurance

15  of compliance with applicable statutes and agency rules is the

16  compliance history of the applicant. The department shall

17  consider the compliance history of the applicant during the 5

18  years preceding submission of a complete application to the

19  agency.

20         (3)  CATEGORIES OF VIOLATIONS.--Violations of agency

21  rules and statutes, and offenses under applicable criminal

22  statutes, are categorized as follows:

23         (a)  Category A.--

24         1.  Felony criminal violations.

25         a.  The applicant has been convicted of, entered a plea

26  of guilty or nolo contendere to, or had adjudication withheld

27  for a felony criminal violation of any state or federal

28  environmental law.

29         b.  For purposes of this subparagraph, if the applicant

30  is a business entity, violations include violations committed

31  by those officers, directors, trustees, partners, or

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  1  managerial employees of the applicant who have legal or actual

  2  operational control over the regulated activity for which a

  3  permit is being sought.

  4         2.  Harm to humans. The applicant is responsible for a

  5  violation of an agency statute, rule, consent order, final

  6  order, final judgment, or agreement that resulted in

  7  significant physical harm or injury to one or more human

  8  beings.

  9         (b)  Category B.--

10         1.  Other criminal violations.

11         a.  The applicant has been convicted of, entered a plea

12  of guilty or nolo contendere to, or had adjudication withheld

13  for a misdemeanor criminal violation of any environmental

14  statute in this state; or

15         b.  The applicant has been convicted of, entered a plea

16  of guilty or nolo contendere to, or had adjudication withheld

17  for a crime of dishonesty in this state which involves or is

18  related to the operation of a facility or activity requiring

19  an agency permit. Such crimes may include theft, larceny,

20  dealing in stolen property, receiving stolen property,

21  burglary, embezzlement, obtaining property by false pretenses,

22  possession of altered property, or any fraudulent or dishonest

23  dealing.

24

25  For purposes of this subparagraph, if the applicant is a

26  business entity, violations include violations committed by

27  those officers, directors, trustees, partners, or managerial

28  employees of the applicant who have legal or actual

29  operational control over the regulated activity for which a

30  permit is being sought.

31         2.  Circumvention or falsification.

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  1         a.  The applicant is responsible for a violation

  2  involving the knowing circumvention of pollution control

  3  equipment required by agency rules, statutes, orders, or

  4  permit conditions;

  5         b.  The applicant is responsible for a violation

  6  involving the knowing failure to install, maintain, or operate

  7  any monitoring device or method required to be maintained by

  8  agency rules, statutes, orders, or permit conditions;

  9         c.  The applicant is responsible for a violation

10  involving the knowing submission of any false statement,

11  representation, or certification in any application, record,

12  report, plan, or other document filed or required to be

13  maintained by agency rules, statutes, orders, or permit

14  conditions; or

15         d.  The applicant is responsible for a violation

16  involving falsifying, tampering with, or knowingly rendering

17  inaccurate any monitoring device or method required to be

18  maintained by agency rules, statutes, orders, or permit

19  conditions.

20         3.  Harm to the environment. The applicant is

21  responsible for any violation of an agency statute, rule,

22  consent order, final order, final judgment, or agreement that

23  resulted in significant harm or injury to the environment.

24         (c)  Category C.--

25         1.  The applicant is responsible for a violation of an

26  agency statute, rule, consent order, final order, agreement,

27  or final judgment involving the agency which resulted in a

28  significant threat to human health or the environment.

29         2.  The applicant is responsible for a violation of an

30  agency statute, rule, consent order, final order, agreement,

31  or final judgment involving the agency which is not addressed

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  1  in subparagraph 1., which has not been resolved, and which the

  2  applicant has not attempted to resolve through a consent order

  3  or other agreement with the agency, following a good-faith

  4  effort on the part of the applicant at participation in a

  5  process designed to achieve such resolution.

  6         (d)  Category D.--The applicant is responsible for two

  7  or more violations, on at least two separate occasions, of

  8  agency statutes, rules, consent orders, final orders,

  9  agreements, or final judgments involving the agency which

10  establish a pattern of noncompliance indicating that the

11  applicant is unwilling or unable to comply with applicable

12  agency standards and criteria.

13         (4)  RELEVANT COMPLIANCE HISTORY.--In evaluating an

14  applicant's compliance history, the agency shall consider only

15  those violations categorized in subsection (3), and only in

16  accordance with the following criteria:

17         (a)  If the application is for the renewal of an agency

18  permit, or for a new permit at any site other than a new site,

19  the agency shall consider the applicant's violations at that

20  site, and shall also consider any of the applicant's Category

21  A crimes at any site in the United States.

22         (b)  If the application is for a new permit at a new

23  site, the agency shall consider the applicant's violations at

24  any site in the state.

25         (c)  If the application is for an operation permit for

26  a regulated activity for which a construction permit was

27  issued during the 5 years preceding the application, and if

28  the agency evaluated the compliance history of the applicant

29  during the review of the construction permit, the agency shall

30  not reevaluate that compliance history, unless the entities

31  whose histories were originally reviewed were responsible for

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  1  additional violations occurring after the agency completed the

  2  construction permit review.

  3         (d)  This subsection does not apply to general permits

  4  issued in accordance with ss. 373.414 and 403.814, and only

  5  subsections (11)-(14) apply to applications for closure and

  6  postclosure permits. However, the agency may continue to use

  7  its authority under s. 403.087 to consider the compliance

  8  history of those seeking to use a general permit.

  9         (5)  CIVIL VIOLATIONS; BURDEN OF PROOF.--The agency may

10  consider all civil violations that were committed during the

11  relevant review period and that resulted in the initiation of

12  a formal enforcement action by the agency. However, if a civil

13  violation or violations have not been resolved or adjudicated

14  before the agency takes final action on the application, the

15  civil violation must be established by a preponderance of the

16  evidence in any subsequent proceeding challenging the agency's

17  proposed agency action. In all such proceedings:

18         (a)  The permit applicant has the initial burden in any

19  proceeding challenging the proposed agency action of

20  establishing a prima facie case that it has provided

21  reasonable assurance and is entitled to the permit;

22         (b)  The agency, or any party seeking to establish

23  violations under this subsection, then has the burden of

24  presenting by a preponderance of the evidence a prima facie

25  case supporting the violations it contends were the

26  responsibility of the applicant, as well as the pattern of

27  noncompliance if a Category D violation is alleged; and

28         (c)  The permit applicant retains the ultimate burden

29  of persuasion that it has provided reasonable assurance with

30  respect to all issues.

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  1         (6)  FACTORS TO CONSIDER.--If the agency determines

  2  that the applicant is responsible for any Category A, Category

  3  B, or Category D violation, the agency shall initiate a

  4  further review. If the agency determines that the applicant is

  5  responsible for any Category C violation, the agency may

  6  initiate a further review. The following factors must be

  7  considered and weighed in order to evaluate such violations in

  8  the context of the applicant's overall compliance history, and

  9  to determine whether the applicant has provided reasonable

10  assurance of future compliance with agency rules and statutes:

11         (a)  The number of violations or crimes and the

12  seriousness of such violations or crimes;

13         (b)  The number of other similar facilities controlled

14  by the applicant;

15         (c)  The number and complexity of permits held by the

16  applicant;

17         (d)  Whether the violations or crimes involved

18  regulatory programs that are the same as, or similar to, the

19  regulatory program under which the permit is being requested;

20         (e)  Whether the violations or crimes involved

21  activities that are the same as, similar to, or related to the

22  regulated activity for which a permit is being requested;

23         (f)  Whether the applicant has resolved, or in good

24  faith participated in a process to resolve, all previous

25  violations by the applicant; and

26         (g)  Whether the applicant has developed an

27  environmental management system that complies with the

28  requirements of subsection (9).

29         (7)  POSSIBLE ACTIONS.--After considering the

30  applicant's compliance history, including any mitigating

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  1  factors, the agency may in its discretion take one or more of

  2  the following actions:

  3         (a)  Issue a permit with special conditions designed to

  4  minimize the likelihood of similar future violations.

  5         (b)  Issue a permit with an accompanying administrative

  6  order. The administrative order may include a schedule for

  7  coming into compliance with agency rules, statutes, orders, or

  8  permit conditions; additional operating, training, or auditing

  9  procedures necessary to assure compliance; specified penalties

10  for future noncompliance; and financial assurance in the form

11  of a cash deposit, bond, insurance policy, or letter of credit

12  sufficient to cover damages or cleanup costs that could

13  foreseeably result from future violations.

14         (c)  Require independent compliance audits or programs

15  at the regulated activity at the applicant's cost.

16         (d)  Issue a permit with a duration of less than 5

17  years, if not prohibited by federal law.

18         (e)  Issue a permit with more frequent reporting

19  requirements than are generally required by rule or practice.

20         (f)  Issue a permit requiring financial assurance

21  designed to guarantee performance.

22         (8)  PERMIT DENIAL; CONDITIONAL ISSUANCE.--The agency

23  may deny a permit application only if the agency determines

24  that any action taken under subsection (7) would not

25  reasonably be expected to result in future compliance. Upon

26  such determination, the agency may, in its discretion, deny a

27  permit application, or issue a conditional permit, in

28  accordance with the following:

29         (a)  If the applicant is responsible for a Category A

30  violation, the agency may deny the permit application, and the

31  applicant is not entitled to apply for a permit for the

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  1  regulated activity for which a permit is sought for a period

  2  of 1 year from the date of entry of a final order denying the

  3  permit.

  4         (b)  If the applicant is responsible for two or more

  5  Category B violations, the agency may deny the permit

  6  application, and the applicant is not entitled to apply for a

  7  permit for the regulated activity for a period of 6 months

  8  from the date of entry of a final order denying the permit.

  9         (c)  If the applicant is responsible for a Category D

10  violation, the agency may issue a permit, not to exceed 1 year

11  in duration, which may also include any of the actions

12  provided for in subsection (7). The following criteria will

13  apply to any such permit:

14         1.  The agency shall include in its notice of intended

15  agency action a statement explaining that the agency has

16  determined that the applicant has a pattern of noncompliance

17  and that this determination has formed the basis for taking

18  any of the actions provided for in subsection (7). The agency

19  shall also include a notification that an application to renew

20  the permit could be denied if the pattern of noncompliance

21  continues.

22         2.  If, at the time for permit renewal, the agency

23  determines that the applicant has demonstrated a continuing

24  pattern of noncompliance, the agency shall deny the permit

25  renewal application, and the applicant is not entitled to

26  apply for a permit for the regulated activity for which permit

27  renewal is sought for a period of 6 months from the date of

28  entry of a final order denying the permit renewal.

29         (d)  In considering an application for a permit that

30  includes corrective action requirements, the agency may deny

31  that portion of the permit authorizing operation, and may

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  1  issue a permit that contains only the specified corrective

  2  action requirements and conditions.

  3         (e)  If the applicant has twice been denied a permit in

  4  accordance with this subsection during the 5 years preceding

  5  submission of a complete application to the agency, the

  6  applicant may not apply for a permit for any regulated

  7  activity in this state.

  8         (9)  ENVIRONMENTAL MANAGEMENT SYSTEMS.--An applicant

  9  may propose an environmental management system as part of a

10  permit application or modification. For the purposes of

11  paragraph (6)(f) and paragraph (11)(b), such a program must be

12  approved by the department and be included as a specific

13  permit condition. An approved environmental management system

14  must:

15         (a)  Be designed to eliminate or reduce the likelihood

16  of recurrence of violations;

17         (b)  Establish compliance standards and procedures to

18  be followed by the applicant's employees and agents which are

19  reasonably capable of reducing the prospect of violations;

20         (c)  Provide that specific individuals who have

21  substantial control over the applicant or who have a

22  substantial role in the applicant's policymaking have been

23  assigned overall responsibility to oversee compliance with

24  such standards and procedures;

25         (d)  Provide that the applicant use due care not to

26  delegate substantial discretionary authority to individuals

27  whom the applicant knows, or should have known through the

28  exercise of due diligence, have engaged in violations;

29         (e)  Be communicated effectively to all employees and

30  independent contractors by requiring routine participation in

31  training programs and by disseminating written or electronic

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  1  information that explains program requirements in a practical

  2  manner;

  3         (f)  Establish monitoring and auditing systems

  4  reasonably designed to detect environmental violations by the

  5  applicant's employees and independent contractors;

  6         (g)  Establish a readily available reporting system

  7  whereby employees and independent contractors may report

  8  environmental violations by others within the applicant's

  9  organization without fear of retribution; and

10         (h)  Be consistently enforced through appropriate

11  disciplinary and incentive mechanisms, including, as

12  appropriate, discipline of individuals responsible for the

13  failure to detect an environmental violation.

14         (10)  FORM.--The agency shall establish by rule a form

15  to be used for the purpose of implementing this section. Each

16  permit application submitted to the agency under this section

17  must be accompanied by this completed form. During the permit

18  review process, the form shall be updated by the applicant to

19  reflect any changes in any information included on the

20  application from the time of submission of the application

21  until the agency makes a final determination on the

22  application. The form must include the following:

23         (a)  A section requiring each applicant to report the

24  relevant criminal history of the applicant, including the

25  nature of any offense or offenses, the date of the offense,

26  the court having jurisdiction in the case, the date of

27  conviction or other disposition, and the disposition of the

28  offense; and

29         (b)  A section requiring each applicant who has not

30  held an agency permit during the 5 years preceding submission

31  of a permit application to identify those persons having legal

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  1  or actual authority to control the owner, operator, or

  2  permittee. The form shall specify in detail the information

  3  required to be reported.

  4         (11)  COMPLIANCE INCENTIVES.--Effective July 1, 2005,

  5  any applicant who meets the criteria set forth in this

  6  subsection is eligible for the incentives set forth in this

  7  subsection, unless otherwise prohibited by state or federal

  8  statute, agency rule, or federal regulation, provided that the

  9  applicant meets all other applicable criteria for the issuance

10  of a permit. In order to obtain an incentive, the applicant

11  must affirmatively request the incentive as part of the permit

12  application.

13         (a)  Tier 1. An applicant is eligible for the

14  incentives under subparagraphs 1. and 2. if the applicant

15  conducted the regulated activity for which a permit is sought

16  for at least 4 of the past 5 years or, if it is a new

17  regulated activity, the applicant conducted a similar

18  regulated activity under an agency permit for at least 4 of

19  the past 5 years, and the applicant has not been responsible

20  for any Category A, Category B, Category C, or Category D

21  violations:

22         1.  Extended permit. A renewal of an operation or

23  closure permit, which may include expansions or modifications

24  involving construction, shall be issued for a period of 5

25  years and shall be automatically renewed for an additional 5

26  years without agency action under the following conditions:

27         a.  At least 180 days before the end of the first

28  5-year period, the applicant shall complete and submit the

29  prescribed form to the agency. The applicant shall

30  concurrently publish notice of the application in a newspaper

31  of general circulation in the county in which the regulated

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  1  activity is conducted, and inform the public that the agency

  2  will accept comments on the compliance history of the

  3  applicant for a period of 30 days after the notice is

  4  published. Within 45 days after publication, the agency shall

  5  conduct a review of the compliance history of the applicant,

  6  including consideration of any timely public comments, and

  7  shall determine whether the applicant continues to meet the

  8  criteria set forth in this paragraph.

  9         b.  If the applicant no longer meets the criteria set

10  forth in this paragraph, the agency shall so notify the

11  applicant and shall require the applicant to submit a permit

12  renewal application in accordance with applicable agency

13  statutes and rules. A renewal application submitted within 60

14  days after such notification is considered timely submitted

15  for purposes of s. 120.60.

16         c.  If the applicant meets the criteria set forth in

17  this paragraph, the agency may notify the applicant, but need

18  take no further action for the renewal to be effective.

19         d.  If the applicant seeks to transfer the extended

20  permit to another entity, the transferee shall complete and

21  submit the prescribed form as part of the transfer

22  application. If the agency determines that the transferee has

23  met the criteria set forth in this paragraph over the previous

24  5 years, and if the transferee complies with all other

25  applicable criteria, the agency shall transfer the extended

26  permit.

27         2.  Short-form renewals. Renewal of permits not

28  involving substantial construction or expansion may be made on

29  a shortened application form specifying only the changes in

30  the regulated activity for which permit renewal is sought or a

31  certification by the permittee that no changes in the

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  1  regulated activity are proposed, if that is the case.

  2  Applicants for short-form renewals shall complete and submit

  3  the prescribed compliance form with the application and shall

  4  remain subject to the compliance history review of this

  5  section. All other procedural requirements for renewal

  6  applications under this section shall apply to short-form

  7  renewals. This subparagraph supplements any expedited review

  8  processes prescribed in agency rules.

  9         (b)  Tier 2. An applicant is eligible for the

10  incentives under subparagraphs 1.-4. if the applicant meets

11  the requirements set forth in paragraph (a) and has

12  implemented an environmental management system as provided in

13  subsection (9) which results in achieving performance

14  objectives that exceed the agency's minimum compliance

15  standards:

16         1.  Extended permits and short-form renewals as

17  provided for in paragraph (a). However, if the applicant has

18  conducted a regulated activity at a site for at least 5 years,

19  the applicant is eligible for a 10-year permit at that site.

20         2.  Fewer routine inspections than other regulated

21  activities similarly situated.

22         3.  Expedited review of requests for permit

23  modifications.

24         4.  Other incentives as may be provided by the agency,

25  which may include recognition by the secretary or

26  program-specific incentives.

27         (12)  RULEMAKING.--The department may adopt rules

28  pursuant to ss. 120.536(1) and 120.54 to administer this

29  section. Any such rules adopted by the department shall apply

30  to all agencies as defined in this section, unless an agency

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  1  has adopted its own rule that is substantially identical to

  2  the department's rule.

  3         (13)  ENFORCEMENT ACTION; NOTIFICATION.--The agency is

  4  encouraged to work with permittees and permit applicants

  5  before taking any of the actions authorized under this

  6  section, in order to encourage compliance and avoid the overly

  7  burdensome consequences of noncompliance. In each case in

  8  which the agency initiates a formal enforcement action, it

  9  shall clearly and specifically:

10         (a)  Inform the alleged violator of the provisions of

11  this section;

12         (b)  Put the alleged violator on notice of the

13  potential consequences of continuing noncompliance; and

14         (c)  Inform the alleged violator if the agency has

15  determined that a Category A, Category B, or Category C

16  violation has occurred.

17         (14)  CONSTRUCTION.--This section shall not be

18  construed to limit an agency's existing authority to consider

19  factors other than an applicant's compliance history, such as

20  the technical merits of a proposed project or the applicant's

21  financial and human resources, when determining whether the

22  applicant has provided the reasonable assurance necessary to

23  receive the requested permit, nor shall anything in this

24  section be construed to limit an agency's existing authority

25  to impose special conditions in any permit or to revoke any

26  permit.

27         (15)  EFFECT.--Notwithstanding any provision of this

28  section to the contrary, an agency may continue to evaluate

29  compliance history based upon other provisions of law until

30  July 1, 2005. After July 1, 2005, this section shall supersede

31  all other provisions of law authorizing an agency to consider

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  1  the compliance history of applicants for permits, other than

  2  general permits.

  3         Section 4.  Subsection (5) of section 403.087, Florida

  4  Statutes, is amended to read:

  5         403.087  Permits; general issuance; denial; revocation;

  6  prohibition; penalty.--

  7         (5)  The department shall issue permits to construct,

  8  operate, maintain, expand, or modify an installation which may

  9  reasonably be expected to be a source of pollution only if the

10  applicant affirmatively provides the department with

11  reasonable assurance that the proposed activity and applicant

12  will comply with department rules, statutes, orders, and

13  permit conditions when it determines that the installation is

14  provided or equipped with pollution control facilities that

15  will abate or prevent pollution to the degree that will comply

16  with the standards or rules adopted by the department, except

17  as provided in s. 403.088 or s. 403.0872. The compliance

18  history of the applicant shall be one factor in determining

19  whether the applicant has provided such reasonable assurance.

20  However, separate construction permits shall not be required

21  for installations permitted under s. 403.0885, except that the

22  department may require an owner or operator proposing to

23  construct, expand, or modify such an installation to submit

24  for department review, as part of application for permit or

25  permit modification, engineering plans, preliminary design

26  reports, or other information 90 days prior to commencing

27  construction.  The department may also require the engineer of

28  record or another registered professional engineer, within 30

29  days after construction is complete, to certify that the

30  construction was completed in accordance with the plans

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  1  submitted to the department, noting minor deviations which

  2  were necessary because of site-specific conditions.

  3         Section 5.  Subsection (6) is added to section 373.413,

  4  Florida Statutes, to read:

  5         373.413  Permits for construction or alteration.--

  6         (6)  The provisions of s. 403.08763, the

  7  performance-based permitting program, apply to all permits

  8  issued under this section other than general permits.

  9         Section 6.  Subsection (5) is added to section 161.041,

10  Florida Statutes, to read:

11         161.041  Permits required.--

12         (5)  The provisions of s. 403.08763, the

13  performance-based permitting program, shall apply to all

14  permits issued under this chapter.

15         Section 7.  This act shall take effect July 1, 2002.

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates the "Florida Performance-Based Permitting Act."
  4    Provides legislative findings and public purpose.
      Establishes the performance-based permitting program for
  5    regulated activities under ch. 161, F.S., relating to
      beach and shore preservation, pt. IV of ch. 373, F.S.,
  6    relating to management and storage of surface waters, ch.
      376, F.S., relating to pollutant discharge and removal,
  7    and ch. 403, F.S., relating to environmental control.
      Provides definitions.  Requires the Department of
  8    Environmental Protection to consider the compliance
      history of permit applicants.  Provides categories of
  9    violations. Provides relevant compliance history
      criteria.  Provides for burden of proof with respect to
10    civil violations.  Provides factors to consider with
      respect to evaluation of an applicant's compliance
11    history. Provides for possible departmental actions in
      response to a permit application.  Provides conditions
12    for permit denial and conditional issuance of a permit.
      Authorizes applicants to propose an environmental
13    management system as part of a permit application or
      modification.  Provides for the creation of forms and for
14    submission of specified information.  Provides for
      compliance incentives, effective July 1, 2005, for
15    applicants who meet certain criteria.  Authorizes the
      adoption of rules. Provides specified notification
16    requirements with respect to formal enforcement actions.
      Provides that an agency may continue to evaluate
17    compliance history based on other provisions of law until
      July 1, 2005, at which time the act supersedes all other
18    provisions of law authorizing an agency to consider the
      compliance history of applicants for permits other than
19    general permits.

20
      Revises conditions under which the department shall issue
21    a permit to construct, operate, maintain, expand, or
      modify an installation which may reasonably be expected
22    to be a source of pollution. Provides that an applicant's
      compliance history shall be a factor in determining
23    whether the applicant has provided specified reasonable
      assurance.
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