HB 7171

1	A bill to be entitled
2	An act relating to the Gold Star Permitting Program;
3	creating s. 403.0874, F.S.; providing a short title;
4	providing legislative findings and purpose; providing
5	definitions; providing compliance incentives for
6	applicants for renewal of certain environmental permits;
7	providing eligibility requirements for incentives;
8	providing criteria for the Department of Environmental
9	Protection to consider when considering permit
10	applications and issuing new permits; authorizing the
11	department to create reporting forms; requiring the
12	department to adopt rules; providing for alternative
13	action by the department to encourage compliance by
14	permittees and applicants; providing an exception for
15	certain permits; amending ss. 161.041 and 373.413, F.S.;
16	specifying application of the Gold Star Permitting Program
17	to certain permits; providing an effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Section 403.0874, Florida Statutes, is created
22	to read:
23	403.0874  Gold Star Permitting Program.--
24	(1)  SHORT TITLE.--This section may be cited as the
25	"Florida Gold Star Permitting Act."
26	(2)  LEGISLATIVE FINDINGS AND PURPOSE.--The Legislature
27	finds and declares that a permit applicant's history of
28	compliance or noncompliance with environmental laws, rules, and
29	permit conditions is a factor that should be considered by the
30	department when it determines whether to issue a new permit to
31	the applicant. Permit applicants with a history of compliance
32	with the environmental laws, rules, and permit conditions should
33	be eligible for longer-term permits, short-form permit renewals,
34	and other incentives to reward and encourage such applicants
35	when those permits are renewed. Permit applicants with a history
36	of noncompliance with environmental laws, rules, and permit
37	conditions should be subject to more stringent requirements,
38	and, in some cases, such applicants should be denied permits for
39	an appropriate period of time. It is therefore declared to be
40	the purpose of this section to provide the department with clear
41	and specific authority to consider the compliance history of
42	permit applicants when evaluating whether the applicant should
43	be issued a new permit, in determining what conditions should be
44	imposed on the permit, and in evaluating whether an applicant
45	for renewal of a permit should be awarded incentives to
46	encourage continued compliance with the applicant's permit and
47	applicable environmental laws.
48	(3)  DEFINITIONS.--For purposes of this section, the
49	following terms have the following meanings:
50	(a)  "Applicant" means the proposed permittee or
51	transferee, the owner, or the operator of a regulated activity
52	seeking an agency permit. If the applicant has not held an
53	agency permit during at least 4 of the 5 years preceding
54	submittal of the permit application, the term also includes any
55	person who has the legal or actual authority to control the
56	proposed permittee, transferee, owner, or operator.
57	(b)  "Department" means the Department of Environmental
58	Protection and local governments acting under a delegation or
59	specific operating agreement with the department.
60	(c)  "Environmental statutes" means any state or federal
61	statute that regulates activities for the purpose of protecting
62	the environment or for the purpose of protecting the public
63	health from pollution or contaminants, but does not include any
64	statute that regulates activities only for the purpose of
65	zoning, growth management, or land use.
66	(d)  "Formal enforcement action" means that:
67	1.  The department has issued or obtained an administrative
68	or judicial final order that finds that an applicant has
69	committed a violation of an environmental statute, department
70	rule, or department permit;
71	2.  The applicant has executed a consent order with the
72	department; or
73	3.  The applicant has been convicted of, pled guilty or
74	nolo contendere to, or entered into a deferred prosecution
75	agreement with respect to the charged offense, regardless of
76	whether adjudication has been withheld, for an environmental
77	offense that is or would be a criminal offense if committed in
78	Florida.
79	(e)  "Regulated activity" means any activity, including the
80	construction or operation of a facility, installation, system,
81	or project, for which a permit is required under chapter 161 or
82	chapter 403 or for which any individual, standard general, or
83	conceptual permit is required under part IV of chapter 373.
84	(4)  COMPLIANCE INCENTIVES.--Unless otherwise prohibited by
85	state or federal statute, agency rule, or federal regulation and
86	provided that the applicant meets all other applicable criteria
87	for the renewal of the permit, any applicant who meets the
88	criteria set forth in this subsection is eligible for the
89	following incentives:
90	(a)  Level 1 incentives.--An applicant for renewal of a
91	permit shall be eligible for incentives pursuant to this
92	paragraph if the applicant has conducted the regulated activity
93	at the site for at least 3 years preceding submittal of the
94	application for renewal of the permit and has had no formal
95	enforcement actions against the applicant since issuance of the
96	permit being renewed. Level 1 incentives shall include:
97	1.  Short-form renewal.--Renewal of operation or closure
98	permits not involving substantial construction or expansion may
99	be made upon a shortened application form specifying only the
100	changes in the regulated activity or a certification by the
101	applicant that no changes in the regulated activity are proposed
102	if that is the case. Applicants for short-form renewals shall
103	complete and submit the prescribed compliance form with the
104	application. All other procedural requirements for renewal
105	applications shall remain in effect.
106	2.  Expedited permit review.--Applicants using short-form
107	renewals for renewal of operation or closure permits not
108	involving substantial construction or expansion shall be
109	eligible for an expedited permit review by the department.
110	(b)  Level 2 incentives.--An applicant shall be eligible
111	for incentives pursuant to this paragraph if the applicant meets
112	the requirements for Level 1 incentives described in paragraph
113	(a) and is a member of the National Environmental Performance
114	Track established by the United States Environmental Protection
115	Agency. Level 2 incentives shall include:
116	1.  Extended permits.--If the applicant has conducted the
117	permitted activity at the site for at least 4 years, the
118	department may issue the applicant a 10-year permit.
119	2.  Gold Star public recognition program.--The department
120	shall establish a recognition program to ensure that the public
121	is able to readily determine which entities permitted by the
122	department are eligible for Level 2 incentives.
123	3.  Requests for additional information.--The department
124	may issue no more than two requests for additional information
125	for a permit renewal under this paragraph.
126	4.  Other incentives.--The department may develop
127	additional incentives designed to encourage performance beyond
128	that required by law, provided that no such incentive shall
129	result in a lessening of environmental protection.
130	(5)  CONSIDERATIONS FOR ISSUING NEW PERMITS.--
131	(a)  The department shall issue a new permit only after the
132	permit applicant affirmatively provides the department with
133	reasonable assurance based on plans, test results, installation
134	of pollution control equipment, or other information that the
135	construction, operation, or activity of the installation will
136	not discharge, emit, or cause pollution in violation of any of
137	the provisions of chapter 161, part IV of chapter 373, or
138	chapter 403, or the rules adopted thereunder.
139	(b)  The department shall also take into consideration
140	violations by the new permit applicant of any provisions of
141	chapter 161, part IV of chapter 373, or chapter 403, or the
142	rules adopted thereunder. When considering a new permit
143	applicant's history of violations, the department shall consider
144	any matter relevant to whether the applicant is willing or able
145	to comply with the permit or any applicable environmental laws
146	or rules, including:
147	1.  The number of violations and the seriousness of such
148	violations in relation to the industry norm and history for the
149	department-regulated activity;
150	2.  The number of other similar facilities controlled by
151	the applicant;
152	3.  The number and complexity of any permits held by the
153	applicant and the statistical potential for violations to occur;
154	4.  Whether the violations involved regulatory programs
155	that are the same as, or similar to, the regulatory program from
156	which the permit is being requested;
157	5.  Whether the violations involved activities that are the
158	same as, similar to, or related to the regulated activity for
159	which a permit is being requested;
160	6.  Whether the violations resulted in harm to human health
161	or the environment and the extent of any such harm;
162	7.  Whether the applicant has implemented an approach or
163	remedial measure that is effectively designed to prevent a
164	recurrence of the violations or crimes;
165	8.  Whether the facility or operation for which a permit is
166	being requested provides or proposes to provide utility services
167	to the public or serves a similar public purpose;
168	9.  Whether the denial of the permit will have an adverse
169	effect on the public at large;
170	10.  Any relevant evidence offered in mitigation by the
171	applicant;
172	11.  Whether the applicant has acted reasonably to resolve
173	previous violations and to prevent their recurrence; and
174	12.  Whether the violations are caused by acts of the
175	applicant or are the result of circumstances beyond the control
176	of the applicant.
177	(c)  For the purposes of this subsection, the department
178	may only consider the applicant's compliance record during the 5
179	years preceding the receipt of the permit application under
180	review.
181	(d)  Nothing in this section shall be construed to limit
182	the department's existing authority to impose conditions on
183	permits, to impose conditions on permits necessary to provide
184	reasonable assurance, to issue shorter term permits, or to
185	establish requirements for the issuance of permits.
186	(e)  In any proceedings conducted pursuant to ss. 120.569
187	or 120.57 contesting the issuance of a permit or the intent to
188	issue a permit, a determination by the department that a permit
189	applicant's history of violations does not preclude permit
190	issuance pursuant to paragraphs (b) and (c) shall be presumed
191	correct and shall not be overturned or recommended to be
192	overturned unless that determination is shown to be clearly
193	erroneous based upon clear and convincing evidence.
194	(6)  REPORTING FORM.--The department may establish a form,
195	by rule, to be used for the purpose of implementing this
196	section. The department may require a responsible official of
197	the applicant to certify under penalty of perjury that the facts
198	set forth on the form are true. Once such a form is adopted,
199	every application for a new permit or for a permit that includes
200	compliance incentives that is submitted to the agency shall be
201	accompanied by the completed form to be considered complete.
202	(7)  RULEMAKING.--The department may adopt rules pursuant
203	to ss. 120.536(1) and 120.54 to implement this section. The
204	rules may specify the format and procedural requirements for
205	requesting incentives, the additional incentives that will be
206	made available, how applicants may qualify for incentives,
207	whether and how extended permits may be transferred and the
208	limitations on transfer, under what circumstances extended
209	permits may be revised based on formal enforcement actions
210	against the permittee, and how other incentives may be removed
211	or revoked if the applicant fails to maintain the programs
212	entitling it to an incentive or if the applicant's compliance
213	history changes.
214	(8)  ALTERNATIVE ACTION.--The department is encouraged to
215	work with permittees and permit applicants prior to taking any
216	formal enforcement action authorized under this section to
217	encourage compliance and avoid overly burdensome consequences of
218	noncompliance.
219	(9)  EXCEPTION.--This section shall not apply to general
220	permits issued in accordance with s. 403.814. However, the
221	agency may continue to use its existing authority to consider
222	the compliance history of general permit applicants.
223	Section 2.  Subsection (5) is added to section 161.041,
224	Florida Statutes, to read:
225	161.041  Permits required.--
226	(5)  The provisions of the Gold Star Permitting Program
227	under s. 403.0874 shall apply to all permits issued under this
228	chapter.
229	Section 3.  Subsection (6) is added to section 373.413,
230	Florida Statutes, to read:
231	373.413  Permits for construction or alteration.--
232	(6)  The provisions of the Gold Star Permitting Program
233	under s. 403.0874 shall apply to individual, standard general,
234	and conceptual permits issued under this part.
235	Section 4.  This act shall take effect October 1, 2007.

CODING: Words stricken are deletions; words underlined are additions.