Senate Bill sb1182

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    Florida Senate - 2005                                  SB 1182

    By Senator Campbell





    32-1117-05                                          See HB 137

  1                      A bill to be entitled

  2         An act relating to the Florida Incentive-based

  3         Permitting Act; creating s. 403.0874, F.S.;

  4         providing a popular name; providing legislative

  5         findings; providing purposes; providing

  6         definitions; providing for an Incentive-based

  7         Permitting Program; providing compliance

  8         incentives for certain environmental permitting

  9         activities; providing requirements and

10         limitations; providing for administration by

11         the Department of Environmental Protection;

12         requiring the department to adopt certain

13         rules; requiring agency notification of formal

14         enforcement actions; providing notice

15         requirements; amending ss. 161.041 and 373.413,

16         F.S.; specifying application of Incentive-based

17         Permitting Program provisions; amending s.

18         403.087, F.S.; revising criteria for department

19         permit issuance to conform; providing an

20         effective date.

21  

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

23  

24         Section 1.  Section 403.0874, Florida Statutes, is

25  created to read:

26         403.0874  Incentive-based Permitting Program.--

27         (1)  POPULAR NAME.--This section may be cited as the

28  "Florida Incentive-based Permitting Act."

29         (2)  LEGISLATIVE FINDINGS; PUBLIC PURPOSE.--

30         (a)  The Legislature finds and declares that a permit

31  applicant's history of compliance with applicable permit

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1  conditions and requirements and the environmental laws of this

 2  state is a factor that should be considered by the department

 3  when the department is considering whether to issue or reissue

 4  a permit to an applicant, based upon compliance incentives

 5  under this section.

 6         (b)  Permit applicants with a history of compliance

 7  with applicable permit conditions and requirements and the

 8  environmental laws of this state should be eligible for longer

 9  permits, expedited permit reviews, short-form permit renewals,

10  and other incentives to reward and encourage such applicants.

11         (c)  It is therefore declared to be the purpose of this

12  section to provide the department with clear and specific

13  authority to consider the compliance history of a permit

14  applicant who has applied for an incentive-based permit.

15         (3)  DEFINITIONS.--For purposes of this section:

16         (a)  "Agency" means the Department of Environmental

17  Protection.

18         (b)  "Applicant" means the proposed permittee or

19  transferee, owner, or operator of a regulated activity seeking

20  an agency permit.

21         (c)  "Environmental laws" means any state or federal

22  law that regulates activities for the purpose of protecting

23  the environment, or for the purpose of protecting the public

24  health from pollution or contaminants, but does not include

25  any law that regulates activities for the purpose of zoning,

26  growth management, or land use. The term includes, but is not

27  limited to, chapter 161, part IV of chapter 373, and chapter

28  403.

29         (d)  "Regulated activity" means any activity,

30  including, but not limited to, the construction or operation

31  

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1  of a facility, installation, system, or project, for which a

 2  permit or certification is required under an agency law.

 3         (e)  "Site" means a single parcel, or multiple

 4  contiguous or adjacent parcels, of land on which the applicant

 5  proposes to conduct, or has conducted, a regulated activity.

 6         (4)  COMPLIANCE INCENTIVES.--In order to obtain

 7  compliance incentives, the applicant must affirmatively

 8  request such incentives as part of the permit application.

 9  Unless otherwise prohibited by state or federal law, agency

10  rule, or federal regulation, and provided the applicant meets

11  all other applicable criteria for the issuance of a permit,

12  any applicant who meets the criteria set forth in this

13  subsection is entitled to the following incentives:

14         (a)  Level 1.--

15         1.  An applicant shall be entitled to incentives

16  pursuant to this paragraph at a site if the applicant

17  conducted the regulated activity for at least 4 of the 5 years

18  preceding submittal of the permit application or, if the

19  activity is a new regulated activity, the applicant conducted

20  a similar regulated activity under an agency permit for at

21  least 4 of the 5 years at a different site in this state

22  preceding submittal of the permit application. However, an

23  applicant shall not be entitled to incentives under this

24  paragraph if the applicant has a relevant compliance history

25  at the subject site that includes any knowing violation that

26  resulted in formal enforcement action and the violation

27  resulted in significant harm to human health or the

28  environment. The term "knowing" means awareness of the nature

29  of a person's acts, not awareness that such acts violate the

30  law. The term does not include conduct that is the result of

31  an act of God, mechanical failure, events beyond the control

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1  of the applicant, an accident, or a mistake of fact. The term

 2  "act of God," which means only an unforeseeable act

 3  exclusively occasioned by the violence of nature without the

 4  interference of any human agency, shall not be deemed to cause

 5  any failure to comply with a permit condition or requirement.

 6         2.  Level 1 incentives shall include:

 7         a.  Automatic renewal of permit.--A renewal of a permit

 8  shall be issued for a period of 5 years and shall, after

 9  notice and an opportunity for public comment, be automatically

10  renewed for one additional 5-year term without agency action

11  unless the agency determines, based on information submitted

12  by the applicant or resulting from the public comments or its

13  own records, that the applicant has committed violations

14  during the relevant review period that disqualify the

15  applicant from receiving the automatic or expedited renewal.

16         b.  Expedited permit review.--The processing time

17  following receipt of a completed application shall be 45 days

18  for the issuance of the agency action.

19         c.  Short-form renewals.--Renewals of permits not

20  involving substantial construction or expansion may be made

21  upon a shortened application form specifying only the changes

22  in the regulated activity or a certification by the applicant

23  that no changes in the regulated activity are proposed if that

24  is the case. Applicants for short-form renewals shall complete

25  and submit the prescribed compliance form with the application

26  and shall remain subject to the compliance history review of

27  this section. All other procedural requirements for renewal

28  applications remain unchanged. This provision shall supplement

29  any expedited review processes found in agency rules.

30         d.  Rulemaking.--Within 6 months after the effective

31  date of this section, the department shall initiate rulemaking

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1  to implement Level 1 incentives. The rule shall specify what

 2  incentives will be made available, how applicants may qualify

 3  for incentives, and how extended permits may be transferred.

 4  Until an implementing rule is adopted, Level 1 incentives

 5  shall not be available to permit applicants under this

 6  section.

 7         (b)  Level 2.--

 8         1.  An applicant shall be entitled to incentives

 9  pursuant to this paragraph if the applicant meets the

10  requirements for Level 1 and the applicant takes any other

11  actions not otherwise required by law that result in:

12         a.  Reductions in actual or permitted discharges or

13  emissions;

14         b.  Reductions in the impacts of regulated activities

15  on public lands or natural resources;

16         c.  Waste reduction or reuse;

17         d.  Implementation of a voluntary environmental

18  management system; or

19         e.  Other similar actions as determined by department

20  rule.

21         2.  Level 2 incentives may include all Level 1

22  incentives and shall also include:

23         a.  Ten-year permits, provided the applicant has

24  conducted a regulated activity at the site for at least 5

25  years.

26         b.  Fewer routine inspections than other regulated

27  activities similarly situated.

28         c.  Expedited review of requests for permit

29  modifications.

30         d.  Agency recognition, program-specific incentives, or

31  certifications in lieu of renewal permits.

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1         e.  No more than two requests for additional

 2  information.

 3         (c)  Rulemaking.--Within 6 months after the effective

 4  date of this section, the department shall initiate rulemaking

 5  to implement Level 2 incentives. The rule shall specify what

 6  incentives will be made available, how applicants may qualify

 7  for incentives, and how extended permits may be transferred.

 8  Until an implementing rule is adopted, Level 2 incentives

 9  shall not be available to permit applicants under this

10  section.

11         (5)  NOTIFICATION.--The agency is encouraged to work

12  with permittees and permit applicants to encourage compliance

13  and avoid burdensome and expensive consequences of

14  noncompliance. In each case in which the agency initiates a

15  formal enforcement action and prior to considering incentives

16  outlined in this section, the agency shall clearly and

17  specifically:

18         (a)  Inform the alleged permittee if the provisions of

19  this section will allow for considering incentives.

20         (b)  Put the alleged permittee on notice of the

21  consequences of violations and the potential consequences of

22  continuing noncompliance in relation to Level 1 or Level 2

23  incentives.

24         Section 2.  Subsection (5) is added to section 161.041,

25  Florida Statutes, to read:

26         161.041  Permits required.--

27         (5)  The Incentive-based Permitting Program provisions

28  of s. 403.0874 shall apply to all permits issued under this

29  chapter.

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

31  Florida Statutes, to read:

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    Florida Senate - 2005                                  SB 1182
    32-1117-05                                          See HB 137




 1         373.413  Permits for construction or alteration.--

 2         (6)  The Incentive-based Permitting Program provisions

 3  of s. 403.0874 shall apply to permits issued under this

 4  section.

 5         Section 4.  Subsection (7) of section 403.087, Florida

 6  Statutes, is amended to read:

 7         403.087  Permits; general issuance; denial; revocation;

 8  prohibition; penalty.--

 9         (7)  A permit issued pursuant to this section shall not

10  become a vested right in the permittee. The department may

11  revoke any permit issued by it if it finds that the

12  permitholder knowingly:

13         (a)  Has submitted false or inaccurate information in

14  the his or her application for such permit;

15         (b)  Has violated law, department orders, rules, or

16  regulations, or permit conditions directly related to such

17  permit and has refused to correct or cure such violations when

18  requested to do so;

19         (c)  Has failed to submit operational reports or other

20  information required by department rule or regulation directly

21  related to such permit and has refused to correct or cure such

22  violations when requested to do so; or

23         (d)  Has refused lawful inspection under s. 403.091 at

24  the facility authorized by such permit.

25         Section 5.  This act shall take effect upon becoming a

26  law.

27  

28  

29  

30  

31  

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