Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 2104
       
       
       
       
       
       
                                Barcode 268042                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/17/2009           .                                
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       The Committee on Environmental Preservation and Conservation
       (Sobel) recommended the following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 435 - 679
    4  and insert:
    5         major source of air pollution, as defined in s. 403.0872,
    6  within the 90-day time period may shall not result in the
    7  automatic approval or denial of the permit and may shall not
    8  prevent the inclusion of specific permit conditions that which
    9  are necessary to ensure compliance with applicable statutes and
   10  rules. If the department fails to approve or deny such an
   11  operation permit for a major source of air pollution within the
   12  90-day period specified in this section or in s. 403.0872, as
   13  applicable, the applicant or a party who participated in the
   14  public comment process may petition for a writ of mandamus to
   15  compel the department to act.
   16         Section 9. Paragraphs (b) and (f) of subsection (2), and
   17  subsections (3), (4), (5), and (9) of section 403.121, Florida
   18  Statutes, are amended to read:
   19         403.121 Enforcement; procedure; remedies.—The department
   20  shall have the following judicial and administrative remedies
   21  available to it for violations of this chapter, as specified in
   22  s. 403.161(1).
   23         (2) Administrative remedies:
   24         (b) If the department has reason to believe a violation has
   25  occurred, it may institute an administrative proceeding to order
   26  the prevention, abatement, or control of the conditions creating
   27  the violation or other appropriate corrective action. Except for
   28  violations involving hazardous wastes, asbestos, major sources
   29  of air pollution, or underground injection, the department shall
   30  proceed administratively in all cases in which the department
   31  seeks administrative penalties that do not exceed $10,000 per
   32  assessment as calculated in accordance with subsections (3),
   33  (4), (5), (6), and (7), and (9). Pursuant to 42 U.S.C. s. 300g
   34  2, the administrative penalty assessed pursuant to subsection
   35  (3), subsection (4), or subsection (5) against a public water
   36  system serving a population of more than 10,000 may shall be not
   37  be less than $1,000 per day per violation. The department may
   38  shall not impose administrative penalties greater than in excess
   39  of $10,000 in a notice of violation. The department may shall
   40  not have more than one notice of violation seeking
   41  administrative penalties pending against the same party at the
   42  same time unless the violations occurred at a different site or
   43  the violations were discovered by the department after
   44  subsequent to the filing of a previous notice of violation.
   45         (f) In any administrative proceeding brought by the
   46  department, the prevailing party shall recover all costs as
   47  provided in ss. 57.041 and 57.071. The costs must be included in
   48  the final order. The respondent is the prevailing party when a
   49  final an order is entered which does not require the respondent
   50  to perform any corrective actions or award any damages or
   51  awarding no penalties to the department and such order has not
   52  been reversed on appeal or the time for seeking judicial review
   53  has expired. The respondent is shall be entitled to an award of
   54  attorney’s fees if the administrative law judge determines that
   55  the notice of violation issued by the department seeking the
   56  imposition of administrative penalties was not substantially
   57  justified as defined in s. 57.111(3) s. 57.111(3)(e). An No
   58  award of attorney’s fees as provided by this subsection may not
   59  shall exceed $15,000.
   60         (3) Except for violations involving hazardous wastes,
   61  asbestos, major sources of air pollution, or underground
   62  injection, administrative penalties must be in accordance with
   63  calculated according to the following schedule:
   64         (a) For a drinking water contamination violations, the
   65  department shall assess:
   66         1. A penalty of $2,000 for a maximum containment level
   67  (MCL) violations; plus $1,000 if the violation is for a primary
   68  inorganic, organic, or radiological maximum contaminant level or
   69  it is a fecal coliform bacteria violation; plus $1,000 if the
   70  violation occurs at a community water system; and plus $1,000 if
   71  any maximum contaminant level is exceeded by more than 100
   72  percent.
   73         2.A penalty of $4,000 for failure to maintain the required
   74  minimum gauge pressure throughout the drinking water
   75  distribution system.
   76         3.A penalty of $3,000 for failure to obtain a clearance
   77  letter before prior to placing a drinking water system into
   78  service if when the system would not have been eligible for
   79  clearance, the department shall assess a penalty of $3,000. All
   80  other failures to obtain a clearance letter before placing a
   81  drinking water system into service shall result in a penalty of
   82  $1,500.
   83         4.A penalty of $4,000 for failure to properly complete a
   84  required public notice of violations, exceedances, or failures
   85  that may pose an acute risk to human health. All other failures
   86  to properly complete a required public notice relating to
   87  maximum containment level violations shall result in a penalty
   88  of $2,000.
   89         5.A penalty of $1,000 for failure to submit a consumer
   90  confidence report to the department.
   91         6.A penalty of $2,000 for failure to provide or meet
   92  licensed operator or staffing requirements at a drinking water
   93  facility.
   94         (b) For wastewater violations, the department shall assess:
   95         1.A penalty of $5,000 for failure to obtain a required
   96  wastewater permit before construction or modification, other
   97  than a permit required for surface water discharge.
   98         2.A penalty of $4,000 for failure to obtain a permit to
   99  construct a domestic wastewater collection or transmission
  100  system.
  101         3.A penalty of $1,000 for failure to renew obtain a
  102  required wastewater permit, other than a permit required for
  103  surface water discharge, the department shall assess a penalty
  104  of $1,000.
  105         4. For a domestic or industrial wastewater violation not
  106  involving a surface water or groundwater quality violation, the
  107  department shall assess a penalty of $2,000 for an unpermitted
  108  or unauthorized discharge or effluent-limitation exceedance.
  109         5.A penalty of $5,000 for an unpermitted or unauthorized
  110  discharge or effluent-limitation exceedance that resulted in a
  111  surface water or groundwater quality violation, the department
  112  shall assess a penalty of $5,000.
  113         6.A penalty of $2,000 for failure to properly notify the
  114  department of an unauthorized spill, discharge, or abnormal
  115  event that may impact public health or the environment.
  116         7.A penalty of $2,000 for failure to provide or meet
  117  requirements for licensed operators or staffing at a wastewater
  118  facility.
  119         (c) For a dredge, and fill, or stormwater violations, the
  120  department shall assess:
  121         1. A penalty of $1,000 for unpermitted or unauthorized
  122  dredging, or filling, or unauthorized construction of a
  123  stormwater management system against the person or persons
  124  responsible; for the illegal dredging or filling, or
  125  unauthorized construction of a stormwater management system plus
  126  $2,000 if the dredging or filling occurs in an aquatic preserve,
  127  Outstanding Florida Water, conservation easement, or Class I or
  128  Class II surface water;, plus $1,000 if the area dredged or
  129  filled is greater than one-quarter acre but less than or equal
  130  to one-half acre;, and plus $1,000 if the area dredged or filled
  131  is greater than one-half acre but less than or equal to one
  132  acre; and plus $3,000 if the person or persons responsible
  133  previously applied for or obtained authorization from the
  134  department to dredge or fill within wetlands or surface waters.
  135         2.A penalty of $10,000 for dredge, fill, or stormwater
  136  management system violations occurring in a conservation
  137  easement.
  138         3. The administrative penalty schedule does shall not apply
  139  to a dredge or and fill violation if the area dredged or filled
  140  exceeds one acre. The department retains the authority to seek
  141  the judicial imposition of civil penalties for all dredge and
  142  fill violations involving more than one acre. The department
  143  shall assess
  144         4. A penalty of $3,000 for the failure to complete required
  145  mitigation, failure to record a required conservation easement,
  146  or for a water quality violation resulting from dredging or
  147  filling activities, stormwater construction activities, or
  148  failure of a stormwater treatment facility.
  149         5. For stormwater management systems serving less than 5
  150  acres, the department shall assess a penalty of $2,000 for the
  151  failure to properly or timely construct a stormwater management
  152  system.
  153         6. In addition to the penalties authorized in this
  154  subsection, the department shall assess a penalty of $5,000 per
  155  violation against the contractor or agent of the owner or tenant
  156  that conducts unpermitted or unauthorized dredging or filling.
  157  For purposes of this paragraph, the preparation or signing of a
  158  permit application by a person currently licensed under chapter
  159  471 to practice as a professional engineer does shall not make
  160  that person an agent of the owner or tenant.
  161         (d) For mangrove trimming or alteration violations, the
  162  department shall assess:
  163         1. A penalty of $5,000 per violation against any person who
  164  violates ss. 403.9321-403.9333 the contractor or agent of the
  165  owner or tenant that conducts mangrove trimming or alteration
  166  without a permit as required by s. 403.9328. For purposes of
  167  this paragraph, the preparation or signing of a permit
  168  application by a person currently licensed under chapter 471 to
  169  practice as a professional engineer does shall not constitute a
  170  violation make that person an agent of the owner or tenant.
  171         2.For second and subsequent violations of subparagraph 1.,
  172  an additional penalty of $100 for each mangrove illegally
  173  trimmed and $250 for each mangrove illegally altered, not to
  174  exceed a total of $10,000.
  175         3.For second and subsequent violations of subparagraph 1.
  176  by a professional mangrove trimmer, an additional penalty of
  177  $250 for each mangrove illegally trimmed or altered, not to
  178  exceed a total of $10,000.
  179         (e) For solid waste violations, the department shall
  180  assess:
  181         1. A penalty of $2,000 for the unpermitted or unauthorized
  182  disposal or storage of solid waste; plus $1,000 if the solid
  183  waste is Class I or Class III (excluding yard trash) or if the
  184  solid waste is construction and demolition debris in excess of
  185  20 cubic yards;, plus $1,000 if the solid waste is disposed of
  186  or stored in any natural or artificial body of water or within
  187  500 feet of a potable water well; and, plus $1,000 if the solid
  188  waste contains PCB at a concentration of 50 parts per million or
  189  greater; untreated biomedical waste; more than 1 cubic meter of
  190  regulated friable asbestos material that greater than 1 cubic
  191  meter which is not wetted, bagged, and covered; more than 25
  192  gallons of used oil greater than 25 gallons; or 10 or more lead
  193  acid batteries.
  194         2.A penalty of $5,000 for failure to timely implement
  195  evaluation monitoring or corrective actions in response to
  196  adverse impacts to water quality at permitted facilities. The
  197  department shall assess
  198         3. A penalty of $3,000 for failure to properly maintain
  199  leachate control; unauthorized burning; failure to have a
  200  trained spotter or trained operator on duty as required by
  201  department rule at the working face when accepting waste;
  202  failure to apply and maintain adequate initial, intermediate, or
  203  final cover; failure to control or correct erosion resulting in
  204  exposed waste; failure to implement a gas management system as
  205  required by department rule; processing or disposing of
  206  unauthorized waste failure to provide access control for three
  207  consecutive inspections. The department shall assess
  208         4. A penalty of $2,000 for failure to construct or maintain
  209  a required stormwater management system; failure to compact and
  210  slope waste as required by department rule; or failure to
  211  maintain a small working face as required by department rule.
  212         5.A penalty of $1,000 for failure to timely submit annual
  213  updates required for financial assurance.
  214         (f) For an air emission violations, the department shall
  215  assess a penalty of $1,000 for an unpermitted or unauthorized
  216  air emission or an air-emission-permit exceedance;, plus $1,000
  217  if the emission results in an air quality violation, plus $3,000
  218  if the emission was from a major source and the source was major
  219  for the pollutant in violation; and plus $1,000 if the emission
  220  was more than 150 percent of the allowable level.
  221         (g) For storage tank system and petroleum contamination
  222  violations, the department shall assess:
  223         1. A penalty of $5,000 for failure to empty a damaged
  224  storage system as necessary to ensure that a release does not
  225  occur until repairs to the storage system are completed; if when
  226  a release has occurred from that storage tank system; for
  227  failure to timely recover free product; for failure to submit a
  228  complete site assessment report; or for failure to conduct
  229  remediation or monitoring activities until a no-further-action
  230  or site-rehabilitation completion order has been issued. The
  231  department shall assess
  232         2. A penalty of $3,000 for failure to timely upgrade a
  233  storage tank system or to timely assess or remediate petroleum
  234  contamination. The department shall assess
  235         3. A penalty of $2,000 for failure to conduct or maintain
  236  required release detection; failure to timely investigate a
  237  suspected release from a storage system; depositing motor fuel
  238  into an unregistered storage tank system; failure to timely
  239  assess or remediate petroleum contamination; or failure to
  240  properly install a storage tank system. The department shall
  241  assess
  242         4. A penalty of $1,000 for failure to properly operate,
  243  maintain, repair, or close a storage tank system.
  244         (h)For waste cleanup violations, the department shall
  245  assess:
  246         1.A penalty of $5,000 for failure to timely assess or
  247  remediate contamination; failure to provide notice of
  248  contamination beyond property boundaries or complete an offsite
  249  well survey; for the use or injection of substances or materials
  250  to