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Environmental Crimes: A Handbook to State Environmental Crimes For Patrol Officers, Investigators and Regulatory Specialists Department of Environmental Protection Division of Law Enforcement Office of Public Education & Training 2002

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Page 1: Environmental Crimes: - Edocs

Environmental Crimes:

A Handbook to State Environmental Crimes For Patrol Officers, Investigators and

Regulatory Specialists

Department of Environmental Protection Division of Law Enforcement

Office of Public Education & Training 2002

Page 2: Environmental Crimes: - Edocs

Using this handbook

This is a handbook to the Florida environmental crime statutes and the major environmental programs to which they are applicable. Although the federal statutes are very important and effective in Florida, this book is not a handbook to the federal environmental crime statutes. Accordingly, this handbook was designed to be a quick field reference for the purpose of providing Florida law enforcement officers and environmental regulatory professionals with an exceedingly brief field overview of Florida environmental crime statutes and to the operations of key regulatory programs. It is not intended to be an exhaustive or complete description of those statutes or programs. A much more complete description of the Florida environmental crime statutes and the associated regulatory programs, including a description of the applicable federal statutes and programs is found in “Environmental Crimes: a Guide to Environmental Crime Awareness For Law Enforcement Officers and Regulatory Professionals”. Although also not exhaustive, this text provides an extensive overview of the requirements and uses of the major environmental regulatory and criminal enforcement statutes in use in Florida. The appendices found in the back of this handbook contain a wealth of day-to-day environmental crime related contact information and copies of applicable statutes current as of the date of publication.

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Table of Contents

What are environmental crimes? 1 The Florida Department of Environmental Protection 2 The Florida Statutes 2 Florida Administrative Code Rules 2 Permitting pollution 3 “Mea rea”,the guilty mind 4 Elements of the crime 5 Felonies and misdemeanors 5 Statutes of limitation 6 Safety First! 6 Solid waste regulation 8

Solid waste prohibitions 10 Open burning 11 Construction and demolition debris 17 Waste tires 19

The Florida Litter Law, Section 403.413, Florida Statutes 22 Locations where dumping is prohibited 23 Penalty structure 24 Forfeiture and other special considerations 25 Point source discharges 25 Residuals management 27 Operation and monitoring of wastewater treatment facilities 32

The Florida Air and Water Pollution Control Act, 32 Wetland protection 35

Wetland regulatory jurisdiction 35 Permitting wetland activities 37 Criminal enforcement 38 State-owned submerged lands 40 Discharges and releases of pollutants 41

The Florida Pollutant Discharge Prevention and Control Act 41 Criminal enforcement 43 The Resource Conservation and Recovery Act (RCRA) 46

Criminal Enforcement 53 Used oil 55

Oil filters 57 Air resource management 59

Criminal enforcement 61 Pesticides 62 Pesticide enforcement 63

Appendix “A”, DEP contact information 65

Appendix “B”, Approved local program contact information 67 Appendix “C”, Florida Environmental Crime Strike Force participating agencies 72

Appendix “D”, Florida’s major environmental crime statutes 78 Appendix “E”, Florida’s criminal code statutes potentially related to

environmental crimes 87

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What are environmental crimes? An environmental crime can be defined as a decision to violate the law, plus an action to implement that decision. Whether or not the crime is a prosecutable crime depends on several factors, but the first is the state of mind of the defendant when he made the decision and acted on it. Included with the defendant’s state of mind is his ‘state of knowledge’. Each statute has its own requirement for the defendant’s states of mind and knowledge. These are the criminal ‘intent’ elements that must be proven when making a case under a statute. There are a large number of environmental statutes and administrative rules to implement them. No person can be intimately familiar with all of them at any one time. So then, how are environmental crimes separated from ignorance or simple negligence? There are three typically recognized levels of criminal intent: specific intent, general intent, and strict liability. Specific intent statutes require that the defendant had knowledge that the action was both wrong and illegal and took the action anyway. General intent statutes require that the defendant had knowledge that he took the action, but has no requirement that the defendant knew the action was wrong or illegal. Strict liability statutes do not require any knowledge by the defendant; it is sufficient that the action occurred. With strict liability statutes, the defendant is guilty by association. In Florida, environmental crime statutes have mixed state of mind requirements. Some require that ‘willful’ violations be shown particularly for felony crimes. ‘Willful’ is a specific intent standard requiring that the defendant knew the action was both wrong and illegal. ‘Reckless indifference or gross careless disregard’ (used for pollution misdemeanors in s. 403.161) however applies a general intent standard to culpable environmental negligence. It is important to note that this statute applies a ‘harm or injury’ element that separates culpable negligence in this case from simple negligence. In the federal environmental law felonies are usually general intent standards (‘knowing’) and misdemeanors are usually strict liability. The most common way of separating environmental criminals from those that are ignorant or negligent is through their record of interactions with regulatory agencies. The more interaction an individual or organization has had with environmental regulatory agencies, the higher the knowledge of the requirements of the law is likely to be. This is especially true of those who have a history of non-compliance and civil enforcement actions with the agency. In these cases public records files are often useful to demonstrate the level of regulatory knowledge the defendant possesses. Another useful way to separate criminals from those who are confused or negligent is to examine their motives. Criminals usually expect to gain in some manner from their crime. People who are confused or negligent usually do not expect to gain from the situation and often expect to lose something. Therefore, examining what a criminal may expect to gain from a crime often separates criminal behavior from negligent or ignorant behavior. The gains do not have to be large, but the defendant has to be aware of them and they have to be of some advantage to him. In Florida there are four common motives for environmental crimes:

• Economic An environmental criminal with an economic motive stands to either profit financially by being paid for his crime, or by avoiding the costs of compliance. Additional profits are sometimes derived from enhanced competitive business positions achieved by avoiding the costs of compliance.

• Ego An ego driven environmental criminal is trying to gain self-importance by asserting that they “have friends in high places” or by threatening law enforcement officers and regulators with political repercussions or legal harassment. They typically display an attitude of being above the law.

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• Laziness A lazy environmental criminal is similar to a profit driven criminal, however, he is driven to save the time and effort required for compliance because “its just too far to the landfill”. The savings of the tipping fees and mileage aren’t really the issue. The issue is that the defendant just doesn’t want to put the work into compliance.

• Sociopathy An environmental sociopath does not deal with government or other social authority. He chooses to operate within his own perception of social reality that may include serious environmental non-compliance. Sociopaths, while not numerous, are sometimes irrational and may represent the most dangerous group of defendants to law enforcement officers and regulators.

The majority of environmental crime seen in Florida is due to economic motives and most often results from compliance cost avoidance and/or is related to protection of a competitive or lucrative business position. The Florida Department of Environmental Protection The Department of Environmental Protection is an executive agency of the state established under ss. 20.255, Florida Statutes. As an executive agency, the department is headed by a Secretary who serves at the pleasure of the Governor, and who is required to assure that the environmental and economic policies of the Governor are successfully integrated into the department’s statutory responsibilities. The department operates eight divisions and eight ‘offices’ specifically authorized ss. 20.255. Each of the Divisions is responsible for multiple environmental regulatory programs, and house many of the state’s foremost experts in the science, technology and administrative rules that apply to their programs. For environmental crime investigations, the people in the divisions represent the major source of the technical expertise essential to effective environmental crime investigation and prosecution. The department’s regulatory programs operate through six district offices also authorized under ss. 20.255. The District Offices are where the work of environmental regulation occurs; each office represents each of the regulatory divisions; Air, Water, Waste, Resource Assessment & Management. District offices often have branch offices that house staff from one or more regulatory programs. Investigators from the Bureau of Environmental Investigations, Division of Law Enforcement are assigned to five of the district offices to handle environmental crime issues that arise. The department’s district and branch office locations are listed in Appendix “A”. Florida has local pollution control programs located in many of the major counties. Most of these have programs which correspond to some of the department’s programs and in many cases these programs have operating agreements with the department to provide certain regulatory services within their jurisdictions in lieu of, or in coordination with, the department. These are excellent sources of local environmental program expertise and are very knowledgeable of local pollution sources. They are also usually very active members of environmental crime task forces, and the Florida Environmental Crime Strike Force. A list of current local program contact information can be found in Appendix “B”. The Florida Environmental Crime Strike Force was created to organize local groups in a way that would provide a means of conducting operations aimed at combating statewide environmental crime problems. The Strike Force, has brought together the resources of many federal, state and local law enforcement agencies, regulatory agencies and prosecutor’s offices to deal with major environmental crime issues. The Strike Force uses a 24-hour toll free complaint line, 1-877-2 SAVE-FL (1-877-272-8335) that citizens may use to report environmental crimes. The member agencies of the Florida Environmental Crime Strike Force(s) are listed in Appendix “C”.

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The Florida Statutes The Florida environmental statutes that contain criminal provisions are found in Appendix “D”. Florida criminal code statutes most likely to be applicable to environmental crime cases are found in Appendix “E”. The Florida Administrative Code

Many law enforcement officers who become involved with environmental crimes for the first time become confused and a little disoriented when they first encounter Title 62, Florida Administrative Code. Title 62 contains DEP’s environmental regulations; for the implementation of Chapter 403 and other statutes for which DEP is responsible. Typically, few law enforcement officers other than those of the Florida Fish and Wildlife Conservation Commission regularly encounter administrative code rules. Nevertheless, environmental crimes make it necessary that officers be generally knowledgeable of the key administrative code rules, because rule violations define whether or not an environmental crime has occurred. Because administrative code rules change regularly, it is important that law enforcement officers contact the appropriate regulatory program and follow their guidance concerning the applicability of the administrative code rules to specific cases. Permitting Pollution Regulatory programs need a source specific standard by which to judge the regulatory compliance status of pollution sources. The standard that has been widely adopted nationally is that of a permit or license to construct or operate a pollution source. The use of a permitting scheme allows a regulatory agency to review a source’s design and operation, and to set source specific parameters within which the source is allowed to operate. In Florida, the requirement for permits for air and water sources comes from ss. 403.087:

A stationary installation that is reasonably expected to be a source of air or water pollution must not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be issued for a term of more than 10 years, nor may an operation permit issued after July 1, 1992, for a major source of air pollution have a fixed term of more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this chapter and the rules of the department. (1) The department shall adopt, and may amend or repeal, rules for the issuance, denial, modification, and revocation of permits under this section.

(5) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules adopted by the department,…1

Permits for solid waste and hazardous waste management facilities are required under ss.403.707:

(1) No solid waste management facility may be operated, maintained, constructed, expanded, modified, or closed without an appropriate and currently valid permit issued by the department.2

1 Permits; general issuance; et al, Section 403.087, Florida Statutes (2000) 2 Permits, Section 403.707, Florida Statutes (2000)

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Permits are a plethora of information about a facility, how it should operate, and the operational standards the facility must meet. Not all sources of air or water pollution are subject to permits. Some sources are deemed by the regulatory programs to have too small an impact to consider. The only way to know these is case-by-case discussion with knowledgeable program regulatory staff. What if the source is a mobile source? Section 403.087 mentions that “Stationary sources” are required to have permits from the department. This does not mean that mobile sources are considered to have no impact to the environment. Mobile sources fall beneath the broad prohibition in ss. 403.161(1): (1) It shall be a violation of this chapter, and it shall be prohibited for any person:

(a)To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.3

Therefore, mobile sources must not cause any identifiable environmental injury either. Mens Rea,-The ‘guilty’ mind

A theory of ‘intent’ accompanies every environmental crime. For many regulatory people, the presence of criminal intent is often not apparent. However, criminal intent may be present if they know what it is and where to look for it. Necessary levels of criminal intent change somewhat from statute to statute, and criminal intent is not necessary for some environmental charges. Establishment of criminal intent (mens rea or ‘guilty mind’) is a matter for investigation and may not be apparent at the beginning of the case. In those cases where it cannot be identified through investigation, the probability is that the ‘intent’ element of the statute cannot be met unless the statute is a strict liability statute. Intent is about decisions. Two actions make a crime: a decision to take an illegal action, and taking the action or attempting to take the action. The concept of mens rea or ‘state of mind’ focuses on the motive for the thought process that caused the decision to violate the law. The motive may have been greed, laziness, anger or many other things. Normally, the issue of intent will not be fully settled until the investigation is completed. Essentially, ‘intent’ comes down to three statutory standards: • Specific intent is the knowledge that an action is illegal and the defendant takes the action anyway. • General intent is the general knowledge that an action is wrong, and the defendant takes the action

anyway, but the defendant need not know that the action was illegal. • Strict liability is if the action occurred, the responsible individual is guilty, regardless of state of mind. State environmental statutes are usually specific intent or general intent statutes. ‘Culpability’ is of more value to initiating an investigation than intent. EPA in their Exercise of Investigative Discretion (1994) used ‘culpable conduct’ as one prong of a two pronged screening tool for potential criminal cases.4 EPA defines culpable conduct as:

• A history of repeated violations – While a history of repeated violations does not indicate criminal activity alone, it should be a strong indicator that criminal investigation should be considered. Clearly, repeated violations indicate growing evidence of knowledgeable disregard of the regulations.

3 Prohibitions, violations, et al, Section 403.161, Florida Statutes (2000) 4 The Exercise of Investigative Discretion, EPA-CID (1994)

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• Deliberate misconduct resulting in a violation- Any initial evidence that an action causing a

violation was deliberate should suggest that criminal intent should be suspected.

• Concealment of misconduct or falsification of records- Self-monitoring records are easily falsified to conceal violations. A source would have no motive to falsify records except to conceal violations.

• Tampering with monitoring or control equipment- Tampering with monitoring equipment or

control equipment also leads to concealment of violations.

• Operation of pollution related activities without permits, licenses, manifests or other required documents. - Operation of a pollution source required to have a permit, especially when there is history of involvement with permitted sources, is indicative of a guilty state of knowledge.

While there may be other indicators, the presence of these should suggest that a criminal investigation may be warranted. Elements of the crime The elements of the crime are not materially different in the criminal context than in the civil context. The difference is that criminal law requires proof to the exclusion of every reasonable doubt. This means that each of the statutory elements must be proven separately to the exclusion of reasonable doubt. An example would be a violation of ss. 403.161(5)5:

(5) Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense.

Ss. 403.161(5) relies on other sections of ss.403.161 to establish the violations, for example, ss. 403.161 (1)(b):

(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.6

The elements of the charge of willfully operating without a permit that must be proven beyond every reasonable doubt are underlined in the statute sections above so you can see how they appear in the statute. The elements of the charge are:

• Any person – ‘Person’ must meet the definition of person under ss. 403.031(5). • Willfully- Failure to obtain a permit when a defendant has knowledge a permit is required is

considered ‘willful’. History of regulatory interactions is beneficial to proving this beyond a reasonable doubt.

• Fail(ed)- Either he has a permit or he doesn’t. The only issue that should arise here is whether

there was communication with regulatory staff that appears permissive in nature.

• Required by this Chapter- Was the permit the defendant lacked actually required by Chapter 403?

5 Prohibitions, violation, penalty, intent, Section 403.161(5), Florida Statutes (2000) 6 Prohibitions, violation, penalty, intent, Section 403.161 (1)(a) Florida Statutes (2000)

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If each of these issues can be proven beyond a reasonable doubt, the charge is may be brought against the defendant. Felonies and misdemeanors Is the charge a felony or a misdemeanor? Chapter 775, Florida Statutes establishes felonies and misdemeanors as7:

• Felony- any criminal offense that is punishable under the laws of this state…by death or imprisonment in the state penitentiary.

• Misdemeanor- any criminal offense that is punishable under the laws of this state by a term of

imprisonment in a county correctional facility…not in excess of one year. Chapter 775, Florida Statutes establishes four levels of felonies and two levels of misdemeanors.

Ch. 775. F.S. Penalties

Felony, 3rd degree Up to 5 years imprisonment

$5000 fine

Misdemeanor, 1st degree Up to 1 year imprisonment

$1000 fine

Misdemeanor, 2nd degree Up to 60 days imprisonment

$500 fine

Statutes of Limitation

State environmental felonies- five years from date of discovery

State 1st degree misdemeanors- two years from the date of occurrence

State 2nd degree misdemeanor- one

year from the date of occurrence

Federal environmental crimes- five years from date of occurrence

All Florida environmental crime felonies are ‘third degree’ felonies, the lowest level of felony in Florida. Florida environmental misdemeanors are most often ‘first degree’ misdemeanors, but are sometimes ‘second degree’ misdemeanors. Chapter 775, Florida Statutes establishes the base penalty range for felonies and misdemeanors. Individual statutes, such as some environmental statutes, may significantly enhance the penalty levels of criminal charges above the base level set in Chapter 775. However most statutes rely on the penalty levels set in Chapter 775. Chapter 775 penalty levels for the levels of crime defined in environmental statutes are found in the accompanying table.8 9 Among environmental crimes the Florida Litter Law (ss. 403.413) relies on the base penalties of Chapter 775, while ss. 403.161, 403.727, 373.430, and 376.302 all have significantly enhanced fines exceeding Chapter 775 penalties by up to ten times. Statutes of limitation Statutes of limitation are the times within which the government must initiate a legal action. If the government does not initiate a legal action with the statutory time limit it is barred from taking legal action in most circumstances. For most laws, including federal environmental laws and state misdemeanors, the statute of limitations time limit begins the date the offense occurred. However, for environmental felonies under Chapter 403, Florida Statutes, the statute of limitations begins on the date the government discovers the crime. This has serious implications for environmental crimes in which there is regulatory knowledge but no action is taken until a later complaint is received. The statute of limitations is based on the date of the earlier report, not the date action was taken, or the date the complaint was assigned for criminal investigation. It is not clear, but presumably the statute of limitations would begin even if the initial report was to the wrong government agency. Statutes of limitations for state crimes are specified in ss. 775.15, Florida Statutes.10 Safety First!

7 Classes and definitions of offenses, Section 775.08, Florida Statutes (1997) 8 Penalties, mandatory minimum sentences, etc.,Section 775.082, Florida Statutes (1997) 9 Fines, Section 775.083, Florida Statutes (1997 10 Time limits, Section 775.15, Florida Statutes (1997)

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Environmental crimes can create dangerous circumstances. Police officers are trained to respond to an armed physical threat, or even to verbal abuse. But environmental crimes may expose an officer to silent, slow killers and the officer may never know he or she has been exposed. These are chemical exposures. Many chemical exposures can be just as lethal or debilitating as the results of a physical attack. Worse, chemical exposures may spread to homes and families, and to automobiles and other equipment. Learning how to prevent exposures is only the beginning; learning to protect and decontaminate equipment and clothing is also important.

Environmental crimes may have catastrophic events associated with them such as physical injury, fire or explosion. Officers should not sacrifice their personal safety to save others. If they are injured while trying to rescue another there are two casualties rather than one casualty and one hero! Rescue efforts should be left to specially trained personnel who are equipped to work in chemical environments. Much discussion is given to chemical exposures for environmental crime investigators because the effects of chemicals are often unseen and unexpected. However, environmental investigators must give serious attention to protecting themselves from mechanical injury such as bumps and puncture wounds. Mechanical injury can be seriously debilitating and/or life threatening, or in certain cases, can provide additional exposure pathways for chemicals. Industrial safety equipment such as hardhats, safety glasses or goggles, boots with steel toes and shanks, and ear protection should be chosen and worn on investigation sites and within business facilities where mechanical hazards exist. An OSHA website, www.oshaslc.gov/Publications /OSHA3077 /osha3077.html will provide a discussion of the different types of basic personal protective equipment and information concerning its selection. The most toxic chemical in the world has no physiological impact if a human or animal is not exposed to its toxic effects. Therefore, the ways people are exposed to chemicals must be considered. The first and most important path for chemical exposure in human beings is inhalation. The function of the lungs is to facilitate the movement of oxygen across thin membranes in the alveoli. Therefore, it is easy for the lungs to facilitate the transport of chemical toxins across the membranes and into the bloodstream. There is little to impede the entry of chemical vapors, gases or aerosol droplets to the lungs and once there, they are freely absorbed. The second most important entry portal is oral ingestion. Oral ingestion occurs when contaminated food, drink or smoking materials are placed into the mouth. Oral ingestion also occurs when contaminated skin surfaces are licked, such as licking one’s lips, or when contaminated hands are placed to the lips or face. Oral ingestion places the chemicals in contact with the moist absorptive environment of the digestive system. Absorption through the mucus membranes occurs when chemical toxins contact the moist mucus membranes of the eyes and nasal passages. Mucus membrane exposure is an easy way for chemical toxins to enter the system much the same as toxins entering through the inhalation or ingestion route. Dermal absorption occurs when chemicals contact the skin. The skin serves as a barrier to many chemicals for a limited time. However, many chemicals are absorbed through the skin and some of them are absorbed quickly. Acute exposures to chemicals may cause a variety of physical symptoms such as burning, coughing, tearing, blistering or others depending on the nature of the exposure. Environmental investigators must learn to provide a means of preventing or reducing chemical exposures. If the dose is decreased far below the known physiological response threshold, and the time the exposure occurs is minimized or controlled within careful tolerances, exposures may be considered “safe”. Protective barriers of time and distance are used to protect environmental workers from chemical exposures. Protective barriers of time are created by using chemical resistant protective clothing, gloves, boots and respiratory protection. Use of the right combination of chemical protective suits and respiratory

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protection will provide a limited working time in a contaminated environment if the protective equipment is chosen properly for the specific chemical, concentration, and site conditions. These are decisions that require a level of training and experience beyond the scope of this manual. These decisions and actions must be left to especially trained professionals with experience in choosing and using chemical protective apparatus. There are three typical situations that can expose environmental investigators to chemical toxins:

• First response to a chemical accident, spill or release • Serving a search warrant or otherwise searching and seizing evidence from a contaminated site.

• Inspecting or searching and seizing evidence from an enclosed work area in a business or

industrial facility. In any of these three scenarios, the safer and more useful safety procedure for environmental crimes investigators is using the distance barrier; don’t touch, don’t smell, don’t taste. Observe, don’t intervene. Good observations are important to the chemical emergency responder responding to the incident. A good pair of binoculars is essential and should be considered an important item of safety equipment. Investigators should:

• Observe wind speed and direction. Move to a position upwind. • Observe slopes. Move to a position on higher ground than the incident if such a move can be made

while staying upwind. If not, move from below the incident to a point further away and not directly down slope.

• Remove anyone from the area that you can remove without exposing yourself. • Call for expert assistance. • Don’t walk or drive through puddles or vapor clouds.

• Observe labels and placards. What are the identifiers on the containers? • Observe the incident. Are there visible leaks or spills? If so, are they running along the ground

very far? What color are they? Are there visible vapors or gases coming from them? What color are they? Do they appear to sink to the ground, or disperse into the air? If they sink to the ground, do they appear to roll down along the slope? Are the spilled liquids or vapors having any identifiable affect on vegetation, soil or rocks; i.e., brown dead grass or leaves, bubbling of limestone, soil staining, etc.

• Keep everyone out of the area until incident management experts arrive.

• Communicate your observations to the incident management experts as soon as they arrive.

Appendix “A” lists contact numbers for chemical emergencies. For first responders, a current U.S. Department of Transportation Emergency Response Guidebook is a valuable resource to have in your vehicle. Transportation labels and placards for chemicals carry identification numbers and/or symbols that can allow a first responder to place a chemical into a response guide in the book. The response guide specifies generic exclusion zones and chemical management information that would allow a reasonably safe response under most conditions. When site-specific information is known, the response plan can be changed based on actual knowledge of the incident. The Emergency Response Guidebook is available through the website http://hazmat.dot.gov/gydebook.htm, or through the Florida Department of Transportation Office of Motor Carrier Compliance. It is strongly

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suggested that environmental investigators take additional first responder training. One place to start is the Department of Community Affairs slide series on first responder training. It is found at www.dca.state.fl.us/CPS/SERC/Hazaware/ppt/sld001.htm. Remember, once exposed, always exposed. Solid waste regulation Twenty years ago Florida had more than 500 open dumps. Garbage was dumped at these locations and burned to reduce the volume of the wastes. There was no means of protecting groundwater at these dumps. Today, municipal solid waste (MSW) landfills use lined cells with leachate and gas control and groundwater monitoring programs. Florida has 61 lined class I and class II municipal solid waste landfills and 34 class III landfills. There are also 163 construction & demolition (C&D) debris landfills, 97 of which are landclearing debris landfills. Unfortunately, for all the available solid waste management facilities, Florida is still plagued with large amounts of random open dumping. Open dumping that is much too similar to the ‘bad old days’ of open municipal dumps. Motives for open dumping range from disposal cost avoidance to laziness, and the quantities dumped range from a single family garbage bag to large commercial quantities of C&D debris, waste tires, white goods and many other commodities. All dumps have commonalities to some extent; they all harbor and encourage rodents and disease vector insects, create fire hazards and eyesores, disrupt natural habitat, and threaten ground and surface waters. In addition, they create mechanical hazards for people or animals that come across them. Solid waste collection and disposal is regulated in Florida. Solid waste management11 units such as landfills, waste-to-energy plants, transfer stations, composting facilities, waste tire facilities and others all require valid department permits.12 Limited permitting exemptions are provided for certain types of solid waste disposal by the property owner on his own property. It is important for environmental crimes investigators to be aware of these exemptions.13

• (a) Disposal by persons of solid waste resulting from their own activities on their own property, provided such waste is either ordinary household waste from their residential property or is rocks, soils, trees, tree remains, and other vegetative matter which normally result from land development operations.

• (b) Storage in containers by persons of solid waste resulting from their own activities on their

property, leased or rented property, or property subject to a homeowners or maintenance association for which the person contributes association assessments, if the solid waste in such containers is collected at least once a week.

• (c) Disposal by persons of solid waste resulting from their own activities on their property,

provided the environmental effects of such disposal on groundwater and surface waters are: o 1. Addressed or authorized by a site certification order issued under part II or a permit

issued by the department pursuant to this chapter or rules adopted pursuant thereto; or o 2. Addressed or authorized by, or exempted from the requirement to obtain, a

groundwater monitoring plan approved by the department.

• (d) Disposal by persons of solid waste resulting from their own activities on their own property, provided that such disposal occurred prior to October 1, 1988.

• (e) Disposal of solid waste resulting from normal farming operations as defined by department

rule. Polyethylene agricultural plastic, damaged, nonsalvageable, untreated wood pallets, and

11 Resource Recovery and Management, Section 403.703 (10), Florida Statutes (2000) 12 Permits, Section 403.707, Florida Statutes (2000) 13 Permits, Section 403.707 (2), Florida Statutes (2000)

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packing material that cannot be feasibly recycled, which are used in connection with agricultural operations related to the growing, harvesting, or maintenance of crops, may be disposed of by open burning, provided that no public nuisance or any condition adversely affecting the environment or the public health is created thereby and that state or federal ambient air quality standards are not violated.

• (f) The use of clean debris as fill material in any area. However, this paragraph does not exempt

any person from obtaining any other required permits, nor does it affect a person's responsibility to dispose of clean debris appropriately if it is not to be used as fill material.

• (g) Compost operations that produce less than 50 cubic yards of compost per year when the

compost produced is used on the property where the compost operation is located. Another important exemption involves ‘recovered materials’. By definition, ‘recovered materials’ are not solid waste:

• (7) “Recovered materials" means metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but does not include materials destined for any use that constitutes disposal. Recovered materials as described above are not solid waste.14 (Emphasis supplied)

• (13) “Solid waste" means sludge unregulated under the federal Clean Water Act or Clean Air Act,

sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or garbage, rubbish, refuse, special waste, or other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. Recovered materials as defined in subsection (7) are not solid waste.15 (Emphasis supplied)

Therefore, facilities that handle and store materials that are source separated elsewhere from the waste stream for materials reuse or recovery are not regulated as solid waste management facilities except insofar as they may generate solid wastes incidental to their operations. However, materials recovery facilities that bring solid waste streams into the facility and separate recoverable materials from what is otherwise a disposable waste stream are regulated as solid waste management facilities. The exemptions from regulation are obviously important, but the regulation of solid waste is more important. Only under extraordinary circumstances would properly permitted and operated solid waste management facilities come under criminal scrutiny. Every environmental crime investigator must have a working knowledge of the rules of the solid waste management programs that are most important to the environmental crimes programs. Criminal investigators are more often concerned with individuals or facilities that are not permitted, and are not in the ‘universe’ of regulated facilities. Those are the individuals or facilities that are most likely to create unidentified, but significant environmental damage. Those programs are typically waste tires, construction and demolition debris disposal, yard trash, white goods and other special wastes. Solid waste prohibitions Section 62-701.300, Florida Administrative Code specifies where solid waste may not be disposed under any circumstances16:

• 62-701.300 Prohibitions.

14 Definitions, Section 403.703, Florida Statutes (2000) 15 Definitions, Section 403.703 (13), Florida Statutes (2000) 16 Prohibitions, Florida administrative Code Rule 62-701.300

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o (1) General prohibition.

(a) No person shall store, process, or dispose of solid waste except at a permitted solid waste management facility or a facility exempt from permitting under this chapter.

(b) No person shall store, process, or dispose of solid waste in a manner or

location that causes air quality standards to be violated or water quality standards or criteria of receiving waters to be violated.

FAC Rule 62-701 contains many specific solid waste management prohibitions. While all of these prohibitions are valuable to understanding the background information necessary to successful criminal investigation of solid waste disposal some prohibitions are much more important than others. These are the core solid waste prohibitions of the environmental crime program:

(a) No person shall store, process, or dispose of solid waste except at a permitted solid waste

management facility or a facility exempt from permitting under this chapter.

…no solid waste shall be stored or disposed of by being placed:

o d) In an area subject to frequent and periodic flooding unless flood protection measures are in place;

o (e) In any natural or artificial body of water including ground water;

o (f) Within 200 feet of any natural or artificial body of water…

For purposes of this paragraph, a “body of water” includes wetlands within the jurisdiction of the Department, but does not include impoundments or conveyances which are part of an on-site, permitted stormwater management system, or bodies of water contained completely within the property boundaries of the disposal site which do not discharge from the site to surface waters…

o (g) On the right of way of any public highway, road, or alley; …

• (3) Burning. Open burning of solid waste is prohibited except in accordance with Chapter 62-256,

F.A.C. Controlled burning of solid waste is prohibited except in a permitted incinerator, or in a facility in which the burning of solid waste is authorized by a site certification order issued under Chapter 403, Part II, F.S

• (4) Hazardous waste. No hazardous waste shall be disposed of in a solid waste management

facility unless such facility is permitted pursuant to Chapter 62-730, F.A.C. Open burning Open burning, as recently as the late 1970s, was the primary means of solid waste volume reduction in the open dumps operated by cities and counties, and by smaller private operators. Section 62-701.300(3), Florida Administrative Code (FAC) now specifically prohibits open burning of solid wastes except in certain limited circumstances. Section 62-256, FAC governs open burning in Florida. However, open burning is also subject to regulation by the Division of Forestry and the conditions prescribed by both Section 62-256, FAC, and Section 5I-2.006 FAC must be met. In addition, certain counties impose local restrictions on open burning and in those counties open burning may be further restricted or completely prohibited. To summarize Florida’s open burning requirements:

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• Open burning requires advanced authorization from the Division of Forestry.

• Yard trash and household paper from two or fewer residential units may be burned if metal mesh or other ember restrain is used.

• Private land clearing debris may be burned at the site where it is generated subject to FAC Rule

5I-2.006 and FAC Rule 62-256.500. Land clearing debris may be moved to another site owned by the same property owner if an air curtain incinerator is to be used.

• Commercial land clearing operations should use air curtain incinerators.

• Under certain conditions pesticide containers and some other agricultural wastes may be burned at

the site where they are generated. The following open burning activities are specifically prohibited17:

• 62-256.300 Prohibitions.

o (1) Any open burning not specifically allowed by this Chapter or by Florida Administrative Code Chapter 5I-2 is prohibited. No person shall ignite, cause to be ignited, permit to be ignited, any material which will result in any prohibited open burning as defined in this section; nor shall any person suffer, allow, burn, conduct or maintain any prohibited open burning. The Division of Forestry or any authorized fire control agency empowered by law or ordinance to extinguish unlawful burning may extinguish or cause to be extinguished, any fire that is unauthorized or does not comply with this rule. Any person responsible for unlawful open burning shall bear any applicable costs involved in extinguishing the fire.

o (2) No person shall use or operate any outdoor heating device or burn any

unapproved fuel for cold or frost protection except as provided in this Chapter.

o (3) The open burning of tires, rubber material, Bunker C residual oil, asphalt, roofing material, tar, railroad cross ties, other creosoted lumber, plastics except for polyethylene black plastic mulch used in agriculture, garbage, or trash other than yard trash and household paper products is prohibited. Open burning of yard trash and household paper products is prohibited except as provided in Florida Administrative Code Rule 62-256.700. Open burning of waste pesticide containers is prohibited except as provided in Florida Administrative Code Rule 62-256.700(6).

o (4) Any open burning that is allowed by this Chapter such as the burning of waste

pesticide containers, yard trash, and land clearing debris is restricted to the site where the material was generated and may not be transported to another property to be open burned, with the following exceptions:

• (a) Land clearing debris that is generated by the commercial land clearing

activities of a person may be transported offsite to be burned by an Air Curtain Incinerator that is owned or operated by that person and without a Florida Administrative Code Rule 62-210 air pollution permit provided that it:

• 1. Will be transported to property that is owned or leased by the

person who generated the land clearing debris, and

17 Prohibitions, Florida Administrative Code Rule 62-256

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• 2. Meets a setback distance of 300 feet from occupied buildings for Air Curtain Incinerators with vertical refractory-lined walls and with forced underdraft air, or

• 3. Meets a setback distance of 1000 feet from occupied buildings

for all other Air Curtain Incinerators.

• (b) Land clearing debris generated from the activities of one or more persons may be transported offsite to be burned by an Air Curtain Incinerator with an appropriate Department air pollution permit.

o (5) Open burning within one thousand (1000) feet of any active runway of a

Department of Transportation approved public airport is prohibited. The Division of Forestry or any fire control agency authorized by law or ordinance to extinguish unlawful burning may extinguish or cause to be extinguished, any open burning that is within one thousand (1000) feet of an active airport runway that reduces or potentially reduces visibility at the airport.

o (6) Open burning in particulate and ozone nonattainment areas as specified in Florida

Administrative Code Rule 62-275 or in the area of influence as defined in Florida Administrative Code Rule 62-296 may be temporarily suspended when the Department determines that ambient air concentrations of total suspended particulate or ozone may near or exceed the primary or secondary standards for these pollutants.

o (7) No open burning may be conducted during a National Weather Service Air

Stagnation Advisory, a Department Air Stagnation Advisory, an Air Pollution Episode, or if the Division of Forestry determines that weather conditions are unfavorable for safe burning.

o (8) Open burning which reduces visibility on public roadways to less than one

thousand (1,000) feet is prohibited.

o (9) Nothing in this Chapter may be construed to allow open burning which violates other laws, rules, regulations, or ordinances

In addition, industrial, commercial, and municipal open burning is prohibited without prior approval of the department18

(1) Open burning in connection with industrial, commercial, or municipal operations is prohibited, except when the open burning is determined by the Department to be the only feasible method of operation and prior approval is obtained from the Department, or when an emergency exists which requires immediate action to protect human health and safety, or in connection with county or municipal operations to burn hurricane, tornado, fire, or other disaster generated yard trash using an Air Curtain Incinerator as specified in Florida Administrative Code Rule 62-256.500(2).

For solid waste management purposes, the regulations that manage the burning of yard trash, household paper products, vegetative land-clearing debris, and certain agricultural solid wastes are most important. ‘Yard trash’ is defined as vegetative matter resulting form landscaping and yard maintenance operations and includes materials such as tree and shrub trimmings, grass clippings, palm fronds, trees and tree stumps19. Yard trash is associated with residential or commercial property maintenance and not with land clearing operations.

18 Industrial, commercial, municipal and research open burning, Florida Administrative Code Rule 62-256.600 (1) 19 Definitions, Florida Administrative Code Rule 62-256.200 (25)

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‘Land clearing operations’ are defined as uprooting and clearing of vegetation in connection with the construction of buildings, rights-of-way, residential commercial or industrial development, or the initial clearing of vegetation to enhance property value; but does not include maintenance burning of yard trash resulting from fallen limbs, branches, or leaves, or other property clean-up activities20. ‘Land clearing debris’ is uprooted or cleared vegetation resulting from a land clearing operation and does not include yard trash. Open burning of yard trash and household paper from residential property is allowed under the following conditions21:

• 62-256.700 Open Burning Allowed.

o (1) Open burning to reduce yard trash and household paper products generated on occupied residential premises of not more than two family units is allowed in ozone attainment areas as specified in Florida Administrative Code Rule 62-275 without Department authorization provided that all of the following conditions are met:

(a) The open burning does not produce smoke, soot, odors, visible emissions,

heat, flame, radiation, or other conditions to such a degree as to create a nuisance.

(b) The open burning is one hundred (100) feet or more from any occupied

building other than that owned or leased by the individual doing the burning and fifty (50) feet or more from any public highway or road and is ignited after 9:00 a.m. and is extinguished one hour before sunset providing that no visible smoke will be allowed over any adjacent residence or over the road that would cause a nuisance. These setback requirements apply in counties that are not specifically listed in 62-256.700(1)(c).

(c) The open burning is three hundred (300) feet or more from any occupied

building other than that owned or leased by the individual doing the burning and one hundred (100) feet or more from any public highway or road and is ignited after 9:00 a.m. and is extinguished one hour before sunset providing that no visible smoke will be allowed over any adjacent residence or over the road that would cause a nuisance. The requirements in this section apply in the following counties: Dade, Broward, Pinellas, Hillsborough, Palm Beach, Duval, Orange, Polk, Brevard, Volusia, Escambia, Lee, Sarasota, Pasco, Seminole, Alachua, Manatee, Leon, Marion, Okaloosa, Lake, Bay, St. Lucie, and Collier.

(d) The open burning is fifty (50) feet or more from any residence on the

property where the burning is being conducted.

(e) The open burning is attended and adequate fire-extinguishing equipment is readily available at all times.

(f) The moisture content and composition of material to be burned shall be

favorable to good burning which will minimize air pollution. Green or wet materials may be not be burned.

(g) The open burning is not prohibited by any local, county, municipal, or other governmental rule, regulation, law, or ordinance.

20 Definitions, Florida Administrative Code Rule 62-256.200 (13) 21 Open burning allowed, Florida Administrative Code Rule 62-256.700

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(h) The open burning is enclosed in a noncombustible container or ground excavation covered by a metal mesh or grill, and is setback at least 25 feet from any woodlands, forest, or brush.

o (2) Open burning to reduce yard trash generated on occupied residential premises of not

more than two family units in areas that are designated as non-attainment or maintenance areas for ozone as defined in Florida Administrative Code Rule 62-2 is allowed if a municipal, county or commercial solid waste collection service for yard trash is not available on a periodic basis of at least once a week. Prior authorization shall be obtained from the Department. The open burning must comply with all of the conditions contained in Florida Administrative Code Rule 62-256.700(1), and does not relieve any person from complying with any other applicable laws, rules and ordinances, including Chapter 590, Florida Statutes, and rules of the Division of Forestry.

Besides yard trash and paper products from residential units, farmers may burn empty pesticide containers in the fields where they are used22:

• (6) Subject to all of the following conditions, waste pesticide containers may be burned in open fields by the owner of the crops, the owner's authorized employee or caretaker, or by commercial pesticide applicators hired by the owner or caretaker.

o (a) Plastic containers must be the original container provided by the pesticide

manufacturer or formulator as end user conveyance for the specific product, and not reused containers designed for other products.

o (b) Containers must be classified as Group I Containers23 and bear label instructions

stating that small quantities of the containers may be burned in open fields by the user of the pesticide when such open burning is permitted by State and local regulations.

o (c) The quantity of containers to be burned each day per parcel treated shall not exceed

the amount accumulated during one day's use of pesticide. No more than 500 pounds of pesticide containers shall be burned per day at any specific location. If more than one fire is to be set in any area each specific burning location shall be at least 1,000 yards from each other location at which burning will occur concurrently.

o (d) All Group I Containers which are to be disposed by open burning shall be completely

empty and free of residual material pursuant to the following criteria:

1. Plastic containers including inner liners shall be triple rinsed with the same kind of solvent used to dilute the spray mixture in the field. The rinse liquids from the containers shall be added to the spray mixture in the field.

2. Paper containers shall be emptied by a final shaking and tapping of the sides

and bottom to remove clinging particles. All loosened particles shall be added to the spray mixture or application in the field.

o (e) The open burning shall meet the following conditions:

1. The open burning does not produce smoke, soot, odors, visible emissions, heat, flame, radiation, or other conditions to such a degree as to create a nuisance.

22 Open burning allowed, Florida Administrative Code 62-256.700 (6) 23 As defined in 49 CFR, Part 173

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2. The open burning is two hundred feet or more away from any farm workers or occupied buildings and is one hundred feet or more away from any public road.

3. The fire is ignited after 9:00 A.M. and is extinguished one hour before sunset

of the same day. 4. The person responsible for the burning is in attendance at an upwind location

from the fire for the entire period of the burn (until all flame and smoke have dissipated).

5. The open burning is enclosed in a noncombustible container or ground

excavation covered by a metal grill.

6. Nothing herein shall relieve any person from complying with any other applicable laws, rules and ordinances, including Chapter 590, Florida Statutes, and rules of the Division of Forestry.

The burning of land clearing debris falls into ‘rural’ and ‘non-rural’ land clearing. “rural’ land clearing is not defined but falls under the regulatory authority of 5I-2.006 (1), FAC. ‘Non-rural’ land clearing is defined as a land clearing operation conducted in an urban or residential area, incorporated or unincorporated city or town…and shall not include any land clearing operation associated with country, livestock, or agricultural activities24. Non-rural land clearing is regulated under 62-256.500, FAC. Both rural and non-rural burning require that a burn authorization be obtained by telephone from the Division of Forestry (or other programs in certain delegated counties). Section 5I-2.006 requires:

(1) Open Burning in General. Authorization must be obtained from the Florida Division of Forestry for burns relating to agriculture, silviculture and rural land clearing on the same day the burn is to take place or after 4:00 p.m. of the previous day. The Division of Forestry may set special requirements for authorizations in order to protect public safety, including but not limited to on site inspections. Any authorized burn that goes out of compliance will be allowed a maximum of two hours to be brought into compliance by the person responsible. In the event that the Division determines that there is a threat to life, public safety or property immediate suppression action will be taken.

(a) Non-Certified Daytime Authorizations will be issued for the burning to be conducted

from 9:00 a.m. and the fire must discontinue spreading one hour before sunset except for Certified Prescribed Burn Mangers.

The rules for both rural (FAC rule 5I-2.006 (c) and non-rural (FAC rule 62-256.500) are similar with respect to burn conditions, setback requirements and the use of air curtain incinerators. The open burning conditions contained in FAC Rule 62-256 are included here. FAC Rule 62-256.500 establishes the following setbacks and conditions for non-rural open burning25:

• 62-256.500 Land Clearing. The following rules apply to non-rural land clearing open burning:

o (1) Open burning of wooden material or vegetation generated by a land clearing

operation (except for agricultural, silvicultural, or forestry operations) or the demolition of a structure is allowed provided that all of the following conditions are met:

(a) The open burning meets one of the following setback requirements:

24 Definitions, Florida Administrative Code Rule 62-256.200 25 Land clearing, Florida Administrative Code 62-256.500

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• 1. Three hundred (300) feet or more away from any occupied building for residential land clearing, or

• 2. Three hundred (300) feet or more away from any occupied building

if an Air Curtain Incinerator is used, or

• One thousand (1,000) feet or more away from any occupied building if an Air Curtain Incinerator is not used.

(b) The open burning is setback one hundred (100) feet or more away from any public highway or road and the prevailing winds direct the smoke away from the public highway or road.

(c) The open burning is ignited after 9:00 a.m. and is extinguished one hour

before sunset.

(d) The open burning is attended at all times. (e) The open burning authorized herein is not intended to relieve any person

from complying with any other applicable law, rules, or ordinances, including Chapter 590, Florida Statutes, and rules of the Division of Forestry.

(f) The piles of materials to be burned shall be of such size that the burning will

be completed within the designated time given in paragraph 62-256.500(1)(c). This is not intended to relieve any person from complying with restrictions on size and numbers of piles imposed by the appropriate local fire control authorities.

(g) The moisture content and composition of the material to be burned shall be

favorable to good burning which will minimize air pollution. Wet or green vegetative materials shall not be burned.

(h) The starter fuel and materials to be ignited shall not emit excessive visible

emissions when burned. Tires or other prohibited materials listed in Florida Administrative Code Rule 62-256.300 shall not be used as starter fuels.

(i) The amount of dirt in a land clearing open burning operation shall be

minimized to enhance combustion and reduce emissions.

(j) Prior to open burning for the demolition of a structure, all insulation, electrical wiring, linoleum, carpeting, roofing material such as tar paper and asphalt shingles, or other excessive smoke producing or potentially air toxic material shall be removed.

o (2) The use of Air Curtain Incinerators is allowed for the combustion of land clearing

debris. No Department permits are required for air curtain incinerators that are designed and used as portable units and that will not operate on any one site for more than six months in any year. This does not relieve any person from the requirement of obtaining authorization to use a portable Air Curtain Incinerator, when necessary, from the Division of Forestry, or any local fire control authority. Air Curtain Incinerators may operate as portable units provided that the following conditions are met:

(a) Pit width, length, and side walls shall be properly maintained so that the

combustion of the waste within the pit will be maintained at an adequate temperature and with sufficient air recirculation to provide enough residence

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time and mixing for complete combustion and control of emissions. Pit width shall not exceed twelve (12) feet, and vertical side walls shall be maintained.

(b) No waste may be positioned to be burned above the level of the air curtain in

the pit.

(c) The types of materials to be burned are restricted to land clearing debris. The Department shall authorize upon request the burning of wastes consisting only of clean dry wood used as defined in subsection 62-256.200(5), F.A.C.

(d) Excessive visible emissions are not allowed except for a period of up to 30

minutes during startups and shutdowns, as those terms are defined in Florida Administrative Code Rule 62-296.

o (3) Air Curtain Incinerators that are intended to be stationary units, i.e. continuously

operate at one site for more than six months, or operate at any Department-permitted landfill, must obtain a Department air pollution permit pursuant to Florida Administrative Code Rule 62-210.

o (4) If the open burning resulting from a land clearing operation is creating a nuisance, or

if changing weather or atmospheric conditions create a real or potential fire safety or air pollution problem, the Department may suspend or defer open burning until conditions change.

o (5) Exceptions to the setback requirements shall be granted by the Department if the

applicant obtains a signed statement from every affected resident within the setback area who waives his objections to the open burning associated with the land clearing operation. Statements must be received by the Department 48 hours in advance of the burning.

o (6) Notwithstanding the provisions of Florida Administrative Code Rules 62-

256.300(4)(a)2., 62-256.500(1)(a)2. and 62-256.500(1)(c), refractory-lined air curtain incinerators with forced underdraft air may commence burning at sunrise and may be charged until sunset, provided they maintain a setback distance of 1000 feet from occupied building located off-site and do not create a nuisance. During such times as the air curtain incinerator is not in operation, public access to the air curtain incinerator shall be restricted.

Finally, besides pesticide containers certain other agricultural may also be open burned 26:

(e) Disposal of solid waste resulting from normal farming operations as defined by department rule. Polyethylene agricultural plastic, damaged, nonsalvageable, untreated wood pallets, and packing material that cannot be feasibly recycled, which are used in connection with agricultural operations related to the growing, harvesting, or maintenance of crops, may be disposed of by open burning, provided that no public nuisance or any condition adversely affecting the environment or the public health is created thereby and that state or federal ambient air quality standards are not violated.

Construction & demolition debris In 1997, construction & demolition (C&D) debris production in Florida was estimated at 5.5 million tons, or 23% of the solid waste stream27. In 1996, C&D landfill permitting requirements changed from ‘general permits’ to the much more demanding site-specific environmental permits. Partially because of this there

26 Permits, Section 403.707 (2) (e), Florida Statutes 27 1999 Report to the Legislature, Solid Waste Management Program, Bureau of Solid & Hazardous Waste

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has been a drop in the number of permitted C&D landfills in recent years. However, 163 active permitted C&D debris disposal landfills remained in operation in 1997. C&D is recyclable and in 1997 Florida reportedly recycled 50% or about 2.25 million tons of C&D debris. C&D is the highest volume solid waste involved in illegal dumping activities. The 5.5 million tons cited in the 1997 Report to the Legislature accounts for tonnage reported handled by permitted C&D landfills and recycling facilities. Based on the rate of illegal C&D dumps uncovered, 5.5 million tons falls significantly short of the amount of C&D materials actually disposed of in Florida. C&D is defined as : • (17) “Construction and demolition debris" means discarded materials generally considered to be not

water-soluble and nonhazardous in nature, including, but not limited to, steel, glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, and including rocks, soils, tree remains, trees, and other vegetative matter that normally results from land clearing or land development operations for a construction project, including such debris from construction of structures at a site remote from the construction or demolition project site. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The term also includes:

o (a) Clean cardboard, paper, plastic, wood, and metal scraps from a construction project;

o (b) Except as provided in ss. 403.707(12)(j), unpainted, nontreated wood scraps from

facilities manufacturing materials used for construction of structures or their components and unpainted, nontreated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and

o (c) De minimis amounts of other nonhazardous wastes that are generated at construction or

destruction projects, provided such amounts are consistent with best management practices of the industry.

C&D debris may be disposed on the property on which it was generated without a permit provided it is buried, covered and graded when disposal is completed28:

(f) A permit is not required under this section for the disposal of construction and demolition debris on the property where it is generated, but such property must be covered, graded, and vegetated as necessary when disposal is complete.

If C&D debris is disposed of at a site other than the property where it was generated, the disposal site must be either a permitted C&D disposal landfill or a permitted C&D recycling facility. C&D disposal is not allowed otherwise. Permitted C&D landfills may also accept land-clearing debris for disposal. If so, that is included in the special conditions of the facility’s permit. However, some landfills accept only land clearing debris, and those landfills may operate under a ‘general permit’. A general permit is a permit that is preauthorized by rule or statute provided that facility meets design and operational requirements specified in the rule or statute. The requirements for a land clearing debris general permit are found in FAC Rule 62-701.803.

28 Permits, Section 403.707 (f), Florida Statutes (2000)

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Yard trash should not be confused with land clearing debris. Yard trash is vegetative debris derived from lawn and landscape maintenance. In 1997, known yard trash management facilities handled 3.4 million tons of yard trash (or 14% of the waste stream) in Florida. Yard trash represents a significant volume of waste; one that is both likely to be contaminated with small amounts of pesticides and extremely amenable to reuse as mulch or compost in landscaped environments. Shredding of yard trash into mulch, or processing into compost are the preferred methods of commercial disposal. Individual disposal may be accomplished by private shredding and/or composting, burning in accordance with FAC Rule 62.256, or burying on the property where the yard trash was generated. Commercial yard trash mulching / composting operations are regulated under FAC Rule 62-709. Operators of commercial yard trash processing facilities are required to register with the department. The rule specifies operating conditions for the facility and as long as they operate according to the rule’s requirements, they are not required to have environmental permits. Waste tire management Waste tires are the second most often illegally dumped solid waste. According to the 1997 figures waste tries accounted for 0.7 % for the Florida waste stream or 38,500 tons. This figure represents the waste tires in legitimate disposal or recovery programs, and does not account for those illegally dumped. In October 1988, it became illegal to dispose of whole waste tires in landfills. The reason included concerns about the volume occupied by whole tires, but primarily the focus was to protect landfill liners and closure covers from the destructive forces of waste tire movement in the landfill. Tires are required to be shredded into a minimum of eight pieces before they can be landfilled. Shredded tires proved to be useful for a variety of needs. Tires can be shredded and used for alternative fuels in cement kilns, for drainage aggregate or interim cover at landfills, drainage aggregate in septic systems, crumb rubber admixtures for asphalt paving, and dock bumpers and other recovered rubber products. These reuse methods are used to deal with waste tires that are handled in the legitimate disposal scheme. The statutory changes that made land-filling of whole waste tires illegal, created a $1 per tire tax on new tires to partially underwrite waste tire disposal programs and clean up existing waste tire sites. The new tax did not fully fund tire disposal programs and counties had to charge tipping fees of $1-$2 per tire, or $80 per ton or more for legitimate tire disposal. Legitimate disposal costs have created an economic climate that provides a profit margin easily exploited by illicit tire handlers. Besides open tire dumps in the woods, illicit tire disposers often abandon tires in mini-warehouses, Ryder Trucks and rental property. The waste tire management program concerns only motor vehicle tires. ‘Motor vehicle’ does not include off-road, tractor or aircraft tires29.

• (b)“Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated in this state, used to transport persons or property and propelled by power other than muscular power, but the term does not include traction engines, road rollers, such vehicles as run only upon a track, bicycles, mopeds, or farm tractors and trailers.

• (d) “Waste tire" means a tire that has been removed from a motor vehicle and has not been

retreaded or regrooved. “Waste tire" includes, but is not limited to, used tires and processed tires30.

• (k) “Used tire" means a waste tire which has a minimum tread depth of 3/32 inch or greater and is suitable for use on a motor vehicle31.

29 Waste tire and lead-acid battery requirements, Section 403.717 (1)(b), Florida Statutes (2000) 30 Waste tire and lead-acid battery requirements, Section 403.717 (1)(d), Florida statutes (2000) 31 Waste tire and lead-acid battery requirements, Section 403.717 (1)(k), Florida Statutes (2000)

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‘Used tires’ may be resold for further use on motor vehicles. Many used tires are sold for utility trailers or off-road use, but many are exported to foreign countries for on-road use. A ‘used tire’ is still a ‘waste tire’ and subject to the same collection and storage standards. ‘Waste tire sites’ are the target of the waste tire management program. The goal is to prevent the development and proliferation of waste tire sites: (g) “Waste tire site" means a site at which 1,500 or more waste tires are accumulated32.

FAC Rule 62-711 prohibits many waste tire mismanagement practices. The waste tire prohibitions are:

• (1) No person may maintain a waste tire site unless such site is an integral part of a permitted waste tire processing facility, except as provided in Rule 62-711.500, F.A.C.

• (2) No person shall dispose of waste tires except at a permitted solid waste management

facility which includes any facility permitted by the Department for the disposal of waste tires. Collection or storage of waste tires at a permitted waste tire processing facility or waste tire collection center prior to processing or use does not constitute disposal, provided that the collection and storage complies with Rule 62-711.540, F.A.C.

• (3) Whole waste tires may not be disposed of in a landfill. Waste tires that have been cut

into sufficiently small parts may be disposed of or used as initial cover at a permitted landfill.

o (a) For use as initial cover, a sufficiently small part means that 70 percent of the

waste tire material is cut into pieces of 4 square inches or less and 100 percent of the waste tire material is 32 square inches or less.

o (b) For purposes of disposal, a sufficiently small part means that the tire has

been cut into at least eight substantially equal pieces. Any processed tire which is disposed of in a landfill and which does not meet the size requirement of subsection (a) above must receive initial cover, as defined in Rule 62-701.200(53), F.A.C., once every week.

• (4) No person shall store waste tires unless the waste tires are:

o (a) Collected and stored at a permitted waste tire collection center; o (b) Collected and stored before processing at a waste tire site which is an

integral part of a permitted waste tire processing facility;

o (c) Collected and stored before processing and recycling or disposal in a permitted solid waste management facility; or

o (d) Collected and stored at a facility exempted under Rule 62-711.300, F.A.C.

• (5) No person may contract with a waste tire collector for the transportation, disposal, or

processing of waste tires unless the collector is registered with the Department or exempt from registration requirements. Any person contracting with a waste tire collector for the transportation of more than 25 waste tires per month from a single business location shall maintain records for that location and make them available for review by the Department or by law enforcement officers. These records shall contain the date when the tires were

32 Waste tire and lead-acid battery requirements, Section 403.717 (1)(g), Florida Statutes (2000)

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transported, the quantity of tires, the registration number of the collector, and the name of the driver33. ````

A waste tire collector is any person who transports more than 25 waste tires over public highways at any one time34. Each waste tire collector must register with the department and provide specific information about his identity, his vehicles, his sources of tires, and his disposal locations. Annually renewable, sequentially numbered eight-inch diameter stick-on decals are required to be displayed on each transport vehicle on the driver’s side door. Each numbered decal is issued to a particular transport vehicle. The information required for registration is:

• (a) The business name of the collector, any other name the collector has used when collecting tires in the last three years, the mailing address of the collector, the street address where records are kept, the telephone number of the collector, and the Federal Employer Identification number (FEID) of the collector;

• (b) The name and date of birth of the individual in charge of waste tire collection operations

and, for a corporation, the state and date of incorporation. Non-Florida corporations shall also include the name and address of their Florida Registered Agent;

• (c) A legible copy of the current motor vehicle registration showing the state of registration,

the year, make, tag number, vehicle identification number, and registered vehicle owner for each vehicle used for transporting waste tires, and, if the vehicle is not owned by the collector, the authorization of the vehicle owner for his vehicle to be registered for waste tire collection;

• (d) The Interstate Commerce Commission number of the owner if the vehicle is to be operated

as a common carrier;

• (e) Where the waste tires will be collected, and where they will be delivered or deposited;

• (f) For renewal applications, the annual report required in subsection (7) below.

A waste tire collector may only deposit tires for storage or disposal at permitted waste tire processing facility, a permitted or exempt waste tire collection center, a permitted solid waste management facility or other facility permitted by the department to receive waste tires. If waste tires are loaded on a vehicle and that vehicle does not move over the public highways for any period of time exceeding seven days, the load of waste tires is considered ‘deposited’35. Each waste tire collector must record and maintain the following information regarding its activities for each quarter of operation for three years. Collection records must be available for inspection by Department personnel and law enforcement officers during normal business hours36. Tire storage is an important issue for the environmental crime investigator. The prohibitions state that no person may maintain a tire site (unless its part of a permitted tire processing facility); a tire site being a site that contains more than 1500 waste tires. Storage is also prohibited unless the storage location is:

• A permitted waste tire collection center

33 Waste tire prohibitions, Florida Administrative Code Rule 62-711.400 34 Definitions, Florida Administrative Code 62-701.200 (136) 35 Waste tire collector requirements, Florida Administrative Code 62-711.520 (10) 36 Waste tire collector requirements, Florida Administrative Code 62-711.520 (6)

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• Being stored prior to processing at a permitted solid waste management facility

• Being stored before processing and recycling or disposal in a permitted solid waste management facility

• Being stored at an exempt facility37

Exempt waste tire storage facilities are:

• A tire retreading business, unless 1,500 or more waste tires are stored on the business premises;

• A single facility that, in the ordinary course of business, removes tires from motor vehicles,

unless 1,500 or more waste tires are stored on the business premises; or

• A retail tire-selling business which is serving as a waste tire collection center, unless 1,500 or more waste tires are stored on the business premises.

There is no provision in the rule to allows an individual to store any number of waste tires on their property. Provisionally, individuals who possess and store waste tires on their property do so illegally. Therefore, this issue must be addressed in the field by the use of reasonable discretion by environmental investigators. There are also no rules allowing facilities such as auto breaking or used parts facilities to collect more than 1500 tires without a permit. Storage locations for waste tires, whether inside or outside, must meet specific fire-control design parameters and operational requirements specified in FAC Rule 62-711.540. For those that operate unpermitted waste tire sites, FAC Rule 62-711.500 contains requirements for notification of the department and the information that must be provided. Since this rule has been effective since 1988, it is believed there are no further significant tire sites in Florida that remain unknown to the department. Therefore. The requirements for owners of waste tire sites have little relevance to today’s environmental crime investigators. The Florida Litter Law, Section 403.413, Florida Statutes Originally drafted by an Assistant State Attorney in Miami, the Litter Law was passed as part of a comprehensive solid waste management strategy that became effective in October 1988. This law is elegant in its simplicity and its general application and it has done much to further both the effectiveness of the solid waste management programs in Florida and the environmental crime enforcement program. It has been copied by some other states. The Florida Litter Law is the Florida criminal law of choice for almost all solid waste related crimes. Key definitions38:

“Dump" means to dump, throw, discard, place, deposit, or dispose of.

“Litter" means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; tobacco product; tire; appliance; mechanical equipment or part; building or construction material; tool; machinery; wood; motor vehicle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution

37 Waste tire prohibitions, Florida Administrative Code 62-711.400 (4) 38 The Florida Litter Law (Definitions), Section 403.413(1), Florida Statutes (2000)

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control facility; or substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations.

This definition of litter is sufficiently broad to cover practically every material in the world. ‘Litter’ does not even have to be ‘wastes’, though wastes are certainly covered by the definition.

“Person" means any individual, firm, sole proprietorship, partnership, corporation, or unincorporated association.

Some definitions of ‘person’ go to great lengths to describe governments and political sub-divisions of governments. The definition of ‘person’ here does not do that. While it covers most private sector business enterprises, the issue of government violations is not very clear. In practice, individuals are charged, but not government entities so the issue is not important to effective use of the Litter Law.

(e) “Commercial purpose" means for the purpose of economic gain. Commercial purpose may be profit motivated or motivated by cost avoidance, but in either event commercial purpose is financially driven. Commercial dumping may be done from a:

(f) “Commercial vehicle" means a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conducting business for a commercial purpose.

But merely having a commercial vehicle does not prove that dumping was commercial. A commercial vehicle merely raises a rebuttable presumption of dumping for commercial purpose. Other key definitions that are important to the Litter Law are close to their commonly accepted definitions:

(d) “Aircraft" means a motor vehicle or other vehicle that is used or designed to fly but does not include a parachute or any other device used primarily as safety equipment

(h) “Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor, or

semitrailer combination or any other vehicle that is powered by a motor.

(i) “Vessel" means a boat, barge, or airboat or any other vehicle used for transportation on water.

Locations where dumping litter is prohibited There are three broad locations in the Litter Law where dumping is prohibited39:

Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:

• (a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of

the right-of-way thereof, or any other public lands, except in containers or areas lawfully provided therefor. When any litter is thrown or discarded from a motor vehicle, the operator or owner of the motor vehicle, or both, shall be deemed in violation of this section;

• (b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state,

including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section; or

39 Dumping litter prohibited, Section 403.413 (4), Florida Statutes (2000)

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• (c) In or on any private property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local law, rule, or regulation.

The first two locations are self explanatory. However, (c) requires careful reading.

(c) In or on any private property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local law, rule, or regulation. (emphasis supplied)

This means that to avoid a criminal dumping charge for illegal dumping which occurred on private property two conditions must occur; first, the property owner must have given permission for the dumping, and second, the dumping cannot constitute a public nuisance or be in violation of Chapter 403, Florida Statutes, any rule under Chapter 403 or any other state statute, or any local ordinance. This means that to be legal, dumping which occurs on private property must be fully in compliance with Chapter 403, Part IV and FAC Rule 62-701 and other related rules, an impossible occurrence in most cases. Property owner permission alone is statutorily insufficient to avoid a criminal charge. If property owner permission is not given, there is a rebuttable presumption that a trespass occurred40:

(6) The unlawful dumping by any person of any litter in violation of ss. 403.413(4) is prima facie evidence of the intention of such person to commit an act of trespass. If any waste that is dumped in violation of ss. 403.413(4) is discovered to contain any article, including, but not limited to, a letter, bill, publication, or other writing that displays the name of a person thereon, addressed to such person or in any other manner indicating that the article last belonged to such person, that discovery raises a mere inference that the person so identified has violated this section. If the court finds that the discovery of the location of the article is corroborated by the existence of an independent fact or circumstance which, standing alone, would constitute evidence sufficient to prove a violation of ss. 403.413(4), such person is rebuttably presumed to have violated that section.

Penalty structure The Litter Law uses a sliding scale of penalties based upon the weight or volume dumped or upon the motive for the dump, or the nature of the waste dumped41:

• Any person who dumps litter in violation of subsection (4) in an amount not exceeding 15 pounds in weight or 27 cubic feet in volume and not for commercial purposes is guilty of a non-criminal infraction, punishable by a civil penalty of $50. In addition, the court may require the violator to pick up litter or perform other labor commensurate with the offense committed.

• (b) Any person who dumps litter in violation of subsection (4) in an amount exceeding 15

pounds in weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes is guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083. In addition, the court shall require the violator to pick up litter or perform other community service commensurate with the offense committed. Further, if the violation involves the use of a motor vehicle, upon a finding of guilt, whether or not adjudication is withheld or whether imposition of sentence is withheld, deferred, or suspended, the court shall forward a record of the finding to the Department of Highway Safety and Motor Vehicles, which shall record a penalty of three points on the violator's driver's license pursuant to the point system established by ss. 322.27.

40 Unauthorized entry upon land, Section 810.12 (6), Florida Statutes (2000) 41 Penalties, enforcement, Section 403.413 (6) Florida Statutes (2000)

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• (c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounds in weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as defined in ss. 403.703, is guilty of a felony of the third degree, punishable as provided in ss. 775.082 or ss. 775.083. In addition, the court may order the violator to:

o 1. Remove or render harmless the litter that he or she dumped in violation of this

section; o 2. Repair or restore property damaged by, or pay damages for any damage arising

out of, his or her dumping litter in violation of this section; or o 3. Perform public service relating to the removal of litter dumped in violation of this

section or to the restoration of an area polluted by litter dumped in violation of this section.

o (d) A court may enjoin a violation of this section.

The penalties prescribed in this section are the penalties prescribed in ss. 775.082 and ss.775.083, Florida Statutes. They are not enhanced penalties and there is no provision in the Litter Law for escalating penalties with subsequent convictions. The Litter Law contains special provisions for ‘raw human wastes’ dumped from vehicles:

Unless otherwise authorized by law or permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state42.

The penalty for commercial dumping, or for dumping over 500 pounds, of raw human wastes is the same as the dumping of any other ‘litter’, a third degree felony. However, the non-commercial dumping of less than 500 pounds of raw human wastes is a second-degree misdemeanor. This has serious implications for environmental crime investigators who may not have reliable way to determine how much raw human waste was actually dumped. Forfeiture and other special considerations The Litter Law also contains forfeiture provisions:

(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to dump litter that exceeds 500 pounds in weight or 100 cubic feet in volume is declared contraband and is subject to forfeiture in the same manner as provided in ss. 932.703 and 932.70443.

This provision of Section 403.413 (6) (e) is confusing. The language clearly states that 500 pounds or 100 cubic feet of litter is the threshold amount for which a declaration of contraband is made and seizure and forfeiture is authorized. However, dumping of more than 500 pounds or 100 cubic feet of litter is only one of the felony provisions of Section 403.413; the others are dumping for commercial purpose, and dumping of a hazardous waste. Section 932.701(2) (a) defines a “contraband article” as:

Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony,

42 Dumping raw human wastes prohibited, Section 403.413 (5), Florida Statutes (2000) 43 Penalties, enforcement, Section 403.413 (6), Florida Statutes (2000)

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whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act 44.

To limit forfeitures under the Litter Law to one type of felony crime appears to conflict with the Florida Contraband Forfeiture Act. Since the procedures of Section 932.703 and 932.704 are to be used in Litter Law forfeitures, the effect would appear to be that the provisions of the Florida Contraband Forfeiture Act are not applicable to Litter Law felonies derived from commercial dumping or hazardous waste dumping unless over 500 pounds is dumped. This issue has not yet been addressed by the courts. Finally, there is a provision of the Litter Law that should be used with extreme caution if at all. The language first appears unconstitutional. However, its effect is to establish a rebuttable presumption that dumping per se is unauthorized, and that dumping per se is a public nuisance; the defendant’s burden is to show that his circumstances are somehow different or mitigated by permission and/or lack of public nuisance. In every case, however, environmental investigators and prosecutors should be prepared to prove that the defendant’s dumping was unauthorized and/or a public nuisance. Inability to demonstrate lack of authorization or nuisance may cause the loss of the case on constitutional grounds. The Florida Litter Law is a uniquely effective, and valuable environmental enforcement tool. However, its broad scope of applicability lends itself to law enforcement abuse. It is very important that this valuable statute be protected through the exercise of sound law enforcement judgment and restraint in its use. Point source discharges

The federal Clean Water Act contains the following provisions:

At any time after the promulgation of the guidelines required by subsection (i)(2) of section 1314 of this title, the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described program. The Administrator shall approve each submitted program unless he determines that adequate authority does not exist45.

In Florida, the relevant authority to administer the permitting portion of the Clean Water Act in lieu of EPA is comes from ss. 403.061 (31):

(31) Adopt rules necessary to obtain approval from the United States Environmental Protection Agency to administer the Federal National Pollution Discharge Elimination System (NPDES) permitting program in Florida under ss. 318, 402, and 405 of the Federal Clean Water Act, Pub. L. No. 92-500, as amended. This authority shall be implemented consistent with the provisions of part II, which shall be applicable to facilities certified thereunder. The department shall establish all rules, standards, and requirements that regulate the discharge of pollutants into waters of the United States as defined by and in a manner consistent with federal regulations; provided, however, that the department may adopt a standard that is stricter or more stringent than one set by

44 Florida Contraband Forfeiture Act, Section 932.701 (2)(a) 5., Florida Statutes (2000) 45 National Discharge Elimination System, 33 USC 1342 (b)

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the United States Environmental Protection Agency if approved by the Governor and Cabinet in accordance with the procedures of ss. 403.804(2)46.

Therefore, the department’s broad permitting authority for pollution sources also applies to NPDES regulated facilities. In Florida, facilities that discharge to surface waters are issued combined state and federal permits which address the concerns of both Florida and the EPA.

Federal delegation of regulatory programs to states simplifies the permitting process for both the permitted facility and for the government. For enforcement purposes, any one or more of administrative, civil or criminal actions may be taken by either the state or the federal government. Regulated facilities, in turn, have only one set of permit conditions to meet.

NPDES applies to surface water discharges. Although NPDES issues are not included, non-surface water discharge effluent disposal options are required to be permitted by the state program only.

NPDES permitting is also required for industrial sources that discharge to navigable waters, and state permits (at least for initial construction) are required for no-discharge industrial treatment facilities, and other facilities that do not discharge to surface waters. Florida’s permitted sources range from phosphate mining and chemical plants, paper mills, citrus processing, lime rock mines and many smaller industrial pollution sources.

Under the Clean Water Act industrial pretreatment program, industrial waste sources or other sources of toxic wastes which discharge to sewage collection systems connected to publicly owned treatment works (POTWs) must meet either categorical discharge standards or approved local limits before discharging to the sewer.

‘Local limits’ are limits established under 40 CFR 403.8 (f) (4) by a receiving utility that are developed specifically to protect their receiving POTW.

Discharges to POTWs that are prohibited under any conditions are covered in 40 CFR 403.5. The industrial pretreatment categorical standards are found in 40 CFR, Parts 405-471.

In Florida, the Department of Environmental Protection is responsible for implementing the industrial pretreatment program. The rule governing the program is FAC Rule 62-625. FAC Rule 62-625.110 states the rule’s applicability as:

(a) To the discharge of pollutants from nondomestic sources covered by pretreatment standards which are discharged into, transported by truck or rail, or otherwise introduced into wastewater facilities as defined in Rule 62-625.200(24), F.A.C.;

(b) To public utilities which receive wastewater from sources subject to pretreatment standards and that discharge to surface waters of the State, or public utilities required to implement a pretreatment program in accordance with Chapter 62-610, F.A.C.; and

(c) To any new or existing source subject to pretreatment standards47.

Under FAC Rule 62-625.500, all wastewater utilities over five million gallons per day flow that receive industrial wastewaters that can interfere with the treatment process or pass through the treatment process (or are otherwise required to have a pretreatment program) are required to have an industrial pretreatment program. In addition, the department may require an industrial pretreatment program from any utility of

46 Powers and duties of the department, Section 403.061 (31), Florida Statutes (2000) 47 Applicability, Florida Administrative Code 62-625.110

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less than five millions per day if industrial effluents cause process control problems, sludge disposal problems or other operational problems.

Each utility is required to enforce the provisions their pretreatment programs on their customers. The department enforces the pretreatment program requirements in FAC Rule 62-625 against the utility through its environmental permits for its wastewater treatment plants48. Pretreatment standards may also be enforced against the discharging facility either EPA or DEP.

Residuals management

Pollutants are neither created nor destroyed; they merely change form and media. For example, treatment of water pollutants produces a solid waste termed “residuals” or “sludges”. The sad fact is that the more water is treated, and the more polluted the water is, the more solid waste residuals are produced. These residuals vary from biological solids from biological wastewater treatment processes such as ‘activated sludge’ or ‘trickling filter’ process treatment facilities, to hazardous metal sludges from metal plating waste treatment. Each type of residual requires special management techniques based on its characteristics.

Residuals management has both federal and state components. The Clean Water Act requires that

Notwithstanding any other provision of this chapter or of any other law, in any case where the disposal of sewage sludge resulting from the operation of a treatment works as defined in section 1292 of this title (including the removal of in-place sewage sludge from one location and its deposit at another location) would result in any pollutant from such sewage sludge entering the navigable waters, such disposal is prohibited except in accordance with a permit issued by the Administrator under section 1342 of this title49.

Provisions are made in 40 CFR 501 for state permitting of sludge management programs and in Florida domestic waste residuals or ‘biosolids’ are regulated under FAC Rule 62-640. The provisions of FAC Rule 62-640 are addressed through the domestic waste treatment facility’s environmental construction or operation permit. With some exceptions, domestic waste residuals are managed by land application to pastureland or actively cultivated crops.

FAC Rule 62-640 applies only to domestic waste residuals and domestic septage treatment in amounts greater than 10,000 gallons per day. It does not apply to land application of septage, disposal of residuals or septage in sanitary landfills, disposal of residuals for any purpose other than as soil amendments or fertilizers, incineration of residuals, composting of residuals with other solid wastes, or to treatment or disposal of industrial sludges, air pollution control sludges or water supply treatment sludges. These other residuals management programs are handled under the Department of Health septage rules (FAC Rule 64E-6), solid waste, air, and/or industrial waste programs depending upon the circumstances50.

Two key definitions are necessary to understanding FAC Rule 62-64051

(31) "Residuals" or "domestic wastewater residuals" means the solid, semisolid, or liquid residue generated during the treatment of domestic wastewater in a domestic wastewater treatment facility. Not included is the treated effluent or reclaimed water from a domestic wastewater treatment plant. Also not included are solids removed from pump stations and lift stations, screenings and grit removed from the preliminary treatment components of domestic wastewater treatment facilities, other solids as defined in Rule 62-640.200(24), F.A.C., and ash generated during the incineration of residuals.

48 Pretreatment program development and submission requirements, Florida Administrative Code 62-625.500 49 Disposal or use of sewage sludge, 33 USC 1345 (a) 50 Scope, intent, purpose & applicability, Florida Administrative Code 62-640.100 (6) (k) 51 Definitions, Florida Administrative Code 62-640.200 (31) & (34)

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(34) "Septage" means a mixture of sludge, fatty materials, human feces, and wastewater removed during pumping of an onsite sewage treatment and disposal system. Excluded from this definition are the contents of portable toilets, holding tanks, and grease interceptors.

FAC Rule 62-640 contains several prohibitions52:

(1) Ocean disposal of residuals, or disposal of residuals in any water, including direct discharge to ground water, is prohibited.

(2) Residuals which do not meet Class A pathogen reduction requirements set forth in Rule 62-640.600(1)(a), F.A.C., shall not be used on playgrounds, parks, golf courses, lawns, hospital grounds, or other unrestricted public access areas where frequent human contact with the soil is likely to occur and shall not be sold or given away in a distribution and marketing program.

(3) Residuals which are hazardous waste under Chapter 62-730, F.A.C., shall not be applied to land.

(4) Residuals shall not be discharged into a collection or transmission system without prior consent of the owner of that system.

(5) Residuals shall not be disposed of or applied to land except in accordance with the provisions of this chapter.

(6) The treatment, management, use or land application of residuals shall not cause a violation of the odor prohibition in Rule 62-296.320(2), F.A.C.

(7) Residuals that do not meet the requirements of this chapter for Class AA designation shall not be used for the cultivation of tobacco or leafy vegetables.

(8) Treatment of liquid residuals or septage for the purpose of meeting the pathogen reduction or vector attraction reduction requirements set forth in Rule 62-640.600, F.A.C., shall not be conducted in the tank of a hauling vehicle. Treatment of residuals or septage for the purpose of meeting pathogen reduction or vector attraction reduction requirements shall take place at the permitted facility.

(9) Residuals that do not meet the requirements of this chapter for Class AA designation shall not be shipped into Florida unless shipped to a Department permitted facility that has legally agreed in writing to accept responsibility for proper treatment, management, use and land application of the residuals.

Domestic wastewater residuals are divided into classes depending upon their characteristics. Class “A” residuals are those that meet the federal pathogen and vector reduction requirements set forth in 40 CFR 503.32(a) and 40 CFR 503.33 (b). Class “AA” residuals are those residuals meeting the standards of Class “A” plus additional requirements found in FAC Rule 62-640.850. Class “AA” residuals are those packaged and distributed for use by the public. Class “B” residuals are those which meet the requirements of 40 CFR 503.32(b) and 40 CFR 503.33 (b).

Septage that is regulated under FAC Rule 62-640 and not otherwise treated, must be stabilized by adding sufficient lime to achieve a pH of 12 for at least two hours or 12.5 for at least thirty minutes before land application. However, the pH must be below 12.5 before the stabilized septage is applied53.

52 Prohibitions, Florida Administrative Code 62-640.400 53 Pathogen reduction,… Florida Administrative Code 62-640.600 (1) (c)

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Responsibility for identifying land application sites, residuals analysis, transportation, storage and management of the application of the residuals to the land application site belongs to either the facility that generated the residuals, or to a ‘residuals management facility’ or ‘septage management facility’. A facility that generates residuals may send its residuals to a permitted ‘residuals management facility’ or permitted ‘septage management facility’ for management; or the generating facility may manage its own residual disposal.

Residuals management is a part of each facility’s permit. The basis for a facility’s residual management program is the ‘Agricultural Use Plan’. A current ‘Agricultural Use Plan’ must be in effect for each permitted residuals application site

Every facility permitted to land apply residuals must monitor their residuals and land application process in accordance with FAC Rule 62-640.650 (and 40 CFR, Part 503). The general requirements for actual land application of residuals is found in FAC Rule 62-640 and includes the following requirements54 55:

• Ceiling concentrations for certain pollutants are set. • Site use restrictions, setback distances, crop harvesting, grazing and public access standards

are set based on the pathogen reduction requirements in FAC Rule 62-640.600 and vary from site to site.

• Florida water quality standards (FAC Rule 62-3) cannot be violated as a result of land application of residuals.

• Appropriate equipment must be used to assure uniform application over the site. • Storage on site before application is limited to a maximum of thirty days and access to the

storage location must be restricted to prevent unauthorized access. • Application sites must be posted with appropriate advisory signs. • Minimum general setbacks are:

o 1000 feet from any Class 1 water body or Outstanding Florida Water. o 200 feet from any other surface water. o 500 feet from any public drinking water well. o 300 feet from any private drinking water well. o At least two feet of unsaturated depth to groundwater at the time of application.

In addition, other general requirements are:

• Residuals shall not be applied during rainy weather that causes soil saturation or surface runoff. • Topographic grade of slopes on the application site shall be 8% or less. • Application rates must be based on the nutrient needs of the site vegetation based on the

Agricultural Use Plan.

Septage is a special problem for environmental crimes investigators. Septage collection and disposal less than 10,000 gallons per day is regulated by the Department of Health under FAC Rule 64E-6. Septage haulers have the opportunity to expand their business by picking up industrial wastes such as liquid from garage sumps, mixing it in their trucks with septage and disposing of it illegally at approved septage disposal sites. Septage is also frequently disposed of in unapproved locations.

A permit issued by the Department of Health through the Public Health Unit is required to collect or dispose of septage:

54 Criteria for land application of Residuals, Florida Administrative Code 62-640.700 55 Agricultural Sites, Florida Administrative Code 62-640.750

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(1) No septic tank, grease interceptor, privy, or other receptacle associated with an onsite sewage treatment and disposal system shall be cleaned or have its contents removed until the service person has obtained an annual written permit (form DH 4013, 01/92, Operating Permit, herein incorporated by reference) from the DOH county health department in the county in which the service company is located. Permits issued under this section authorize the disposal service to handle liquid waste associated with food operations, domestic waste, or domestic septage. Such authorization applies to all septage produced in the State of Florida, and food establishment sludge which is collected for disposal from onsite sewage treatment and disposal systems.

Permittees must show that they possess the following required minimum equipment in working order to obtain a permit:

(a) Evidence that the applicant possesses adequate equipment such as a tank truck with a liquid capacity of at least 1500 gallons, except portable toilet servicing vehicles, pumps, off truck stabilization tanks and pH testing equipment where lime stabilization and land application are proposed, as well as other appurtenances and tools necessary to perform the work intended. Equipment may be placed into service only after it has been inspected and approved by the DOH county health department. Tanks used for the stabilization and storage of septage and food service sludges shall be constructed, sized, and operated in accordance with the following provisions:

1. Stabilization tanks and septage storage tanks shall be constructed of concrete, fiberglass, corrosion-resistant steel, or other equally durable material. Tanks shall be watertight and shall be water tested for leaks prior to placing into service. The tank shall have a liquid capacity of at least 3000 gallons.

2. Construction of concrete tanks shall be at a minimum equal to that required of concrete septic tanks in rule 64E-6.013. Fiberglass tanks and tanks of similar materials shall be constructed in accordance with standards found in rule 64E-6.013.

3. Stabilization tanks shall contain aeration or mixing devices which will ensure thorough agitation or mixing of lime with the waste as specified in Chapter 6, EPA 625/1-79-011, Process Design Manual for Septage Treatment and Disposal, herein incorporated by reference.

(b) The proposed disposal method and the site to be used for disposing of onsite sewage treatment and disposal system septage.

(c) The contractor registration number and certificate of authorization number, if applicable.

When a permit to collect and dispose of septage is issued the permittee must display the number of the permit, the name of the company, the company’s phone number, and the gallon capacity of the truck prominently and permanently on the service truck in contrasting colors with 3 inch or larger letters. Use of removable magnetic signs is not considered acceptable equipment identification56.

Septage and food establishment wastes must be treated by lime stabilization before it can be land applied to a land application site approved by the county Public Health Unit57.

(c) No person shall dispose of domestic septage or sludge by land application unless they have complied with approved treatment and disposal methods described in rule 64E-6.010. Lime stabilization in the tank of a septage-hauling vehicle or in the tank of an onsite sewage treatment and disposal system is not an approved septage treatment method.

56 Disposal of septage, Florida Administrative Code 64E-6 (3) 57 Disposal of septage, Florida Administrative Code 64E-6 (7) (c)

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The lime stabilization process is described in detail in FAC Rule 64E-6.010 (7) (a).

Land application sites must be inspected and approved by the county Public Health Unit. Approved land disposal sites cannot be playgrounds, parks, golf courses, lawns, hospital grounds, or other unrestricted public access areas. Approved locations can be sod farms, pasture land, forests, highway shoulders and medians, plant nurseries, land reclamation projects, or human food chain crops58.

To be approved, an agricultural use plan must be developed, submitted and approved for a septage disposal site59:

There are many minimum time delays between septage application and growing certain types of crops or undertaking certain activities on the application site. These are found in FAC Rule 64E-6.010 (7) (a) 2.

General site conditions and setbacks are the same as those contained in FAC Rule 62-640 for domestic residuals except the setback from Class 1 waters has been extended to 3000 feet. There is also a 300-foot setback from any habitable building60.

Besides domestic waste treatment residuals, there are many other types of residuals that result from pollution control activities. Some examples of these include:

• Industrial waste treatment sludges • Air pollution control sludges • Water treatment sludges

Industrial waste residuals may be biological or biochemical residuals, or they may be inorganic sludges of various types. Biological residuals may result from a biological waste treatment process similar to the activated sludge or trickling filter processes used to treat domestic wastewater. Biochemical residuals may be the result of processing organic materials resulting in a strong waste stream with high biochemical oxygen demand. These types of residuals may be amenable to land application. If so, the residuals management processes will be described and be a part of the pollution source’s construction or operating permit. Other industrial residuals, such as metal hydroxide wastes from hydroxide precipitation of certain dissolved metals meet the criteria of regulated hazardous wastes and must be managed under the Hazardous Waste Management Program. Other types of residuals such as some types of petroleum sludges may be handled by incineration. Residual management will be specified in these facility permits as well unless the facility is an industrial pretreatment facility discharging to a POTW that does not require an operation permit. Then the residuals disposal requirements will be determined by the characteristics of the residuals produced by the facility and the solid or hazardous waste requirements that may apply to them.

Air pollution control residuals are the result of the operation of various forms of air pollution control devises such as wet-scrubbers and electrostatic precipitators. The contents of the residuals can vary widely and the residual management is prescribed in the facility permits.

Water treatment residuals usually involve lime treatment or alum treatment sludges, but may involve other residuals as well. Some of these are amenable to land application and their management is prescribed in the facility permits.

Operation and monitoring of wastewater treatment facilities

Florida requires that operators of wastewater treatment facilities demonstrate their knowledge through a mandatory professional certification program61. Each operator in responsible charge of a wastewater 58 Disposal of septage, Florida Administrative Code 64-6 (7) (a) 1. & 2. 59 Disposal of septage, Florida Administrative Code 64E-6 (7) (b) (3) a. & b. 60 Disposal of septage, Florida Administrative Code 64E-6 (7) (j)

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treatment facility must be certified to a level required for that type of facility by the Florida Administrative Code. All wastewater treatment facilities are required to have certified operators physically present at the facility for minimum specified periods of time each week. Operator certifications are issued by the department and may be revoked or suspended by the department. Specific on-site time requirements by treatment plant category can be viewed in FAC Rule 62-699.

Minimum time requirements on site at wastewater treatment facilities is important to the domestic waste treatment program; operators must log and self-report their time on site. The times required are considered to be the minimum necessary time on site for a knowledgeable person to assure that the facility is operating correctly and that normal and customary routine maintenance required to keep the facility in good operating condition is performed. Nevertheless, some operators do not spend the minimum required amount of time at the facilities and are less than truthful in logging and reporting the amount of time actually spent at a facility.

Besides performing routine operation and maintenance at the wastewater treatment plants operators must take samples from the permitted discharges for self-reporting purposes and assure the samples are analyzed at a Department of Health Certified Laboratory. The operators use the laboratory results along with some of their operational monitoring information and file monthly self-monitoring reports (‘monthly operating reports’ or MORs) that form a major portion of the department’s regulatory view of the compliance status of the facility. Failure by an operator to assure that the samples are representative of the plant’s operation, have scientific integrity, are analyzed by a certified laboratory, using appropriate techniques, and correctly reported to the department seriously undermines the regulatory confidence in self-monitoring, in the compliance status of the facility, and the credibility of the operator.

Laboratories that analyze samples for wastewater treatment MORs must be certified by the Department of Health under FAC Rule 64E-1 and must use standard analytical techniques formally accepted by the department and by EPA. Requirements for monitoring at wastewater treatment facilities are specified in FAC Rule 62-601. The integrity of environmental laboratories is critical to the credibility of the self-monitoring programs. The department must have confidence that the analytical laboratory preserved, maintained and analyzed the samples according to department and EPA prescribed methods and that the results of the analysis were accurately reported. “Dry-labing”, the practice of making up analytical results to fit business schedules or cover for the lack of equipment or staff expertise, or merely to defraud their clients or the department is a practice that has been identified among environmental laboratories. Dry-labing undercuts the integrity of regulatory self-reporting.

Florida Air and Water Pollution Control Act, Section 403.161, Florida Statutes

Chapter 403, the Florida Air and Water Pollution Control Act is the core authority of the Department of Environmental Protection for the majority of its regulatory programs and the enforcement provisions of ss. 403.121-141 and prohibition provisions of Chapter 403.161 form the basis for environmental enforcement. Ss. 403.161 contains the second of Florida’s important environmental criminal statutes. The criminal language found in ss. 403.161(3) is applicable to violations any Chapter 403 program, but is especially important to the point source oriented programs of domestic and industrial waste, air and permit oriented violations of the solid waste program.

Key definitions represent the first elements that must be proven in any criminal case. The following are from Section 403.031, Florida Statutes:

(i) “Person" means the state or any agency or institution thereof, the United States or any agency or institution thereof, or any municipality, political subdivision, public or private corporation, individual, partnership, association, or other entity and includes any officer or

61 Drinking water and domestic wastewater treatment plant operators, Florida Administrative Code 62-602

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governing or managing body of the state, the United States, any agency, any municipality, political subdivision, or public or private corporation.

(j) “Pollution" is the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or manmade or human-induced impairment of air or waters or alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation unless authorized by applicable law.

The Florida Supreme Court (Florida-v-Hamilton) found environmental criminality based on simple negligence to be unconstitutional in the late 1980s. Criminal sanctions contained in ss. 403.161 prior to 1990 were misdemeanors at least one of which was based on an unspecified negligence standard. The Florida Legislature changed ss. 403.161 in 1990 to create misdemeanors based on “reckless indifference or gross careless disregard”; an effort to create a ‘culpable negligence’ standard for certain environmental misdemeanors. At the same time, the Legislature both downgraded this new misdemeanor to a second degree misdemeanor, and divided it from a new felony based on willful conduct.

Ss. 403. 161(1) (a), Florida Statutes states*:

(1) It shall be a violation of this chapter, and it shall be prohibited for any person: (a) To cause pollution, except as otherwise provided in this chapter, so as to harm or

injure human health or welfare, animal, plant, or aquatic life or property62.

Ss. 403.161 (4), Florida Statutes adds the culpable negligence standards*:

(4) Any person who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082(4)(b) and 775.083(1)(g) by a fine of not more than $5,000 or by 60 days in jail, or by both, for each offense.

[* Denotes elements of the crime that must be proven.]

Ss. 403.161 (4) has proven impractical for environmental crime deterrent purposes and it has not been used extensively. The reason is that the level of environmental harm or injury proof required to support a second-degree misdemeanor is the same as for the felony without achieving the same deterrent effect. Despite an enhanced potential penalty ten times higher than the basic ss. 775.083 penalty for a second degree misdemeanor it is often more efficient to address negligent violations of ss. 403.161 through civil authority.

Ss. 403.161 provides two different levels of criminal penalty under state law. The first provides a third degree felony. The statute refers back to the earlier prohibition in Section 403.161(1) (a)*:

(1) It shall be a violation of this chapter, and it shall be prohibited for any person (ss.403.031 (5), F.S.):

(a) To cause pollution (ss. 403.031(7), F.S.), except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property63.

62 Prohibitions, Section 403.161 (1)(a), Florida Statutes

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(2) Any person who willfully commits a violation specified in paragraph (1)(a) is guilty of a felony of the third degree…64

Example Elements Failure to obtain a permit: • A person • willfully • failed to obtain a permit • required (by ss. 403.087) Falsification of a Monthly Operating Report (MOR) • A person • willfully • makes a false statement • in an application • required under FAC Rule 62-620

[*Underlined words or phrases denote elements that must be proven. Italics denote key definitions.]

In order to obtain a felony conviction under this statute it is necessary to provide proof of environmental harm or injury that a jury of common people can see and with which they can identify. Florida Assistant State’s Attorneys have historically been hesitant to bring cases under this statute unless environmental harm or damage has been clearly and visually demonstrated. Environmental harm or injury provable only by lengthy scientific discourse, however creditable, is unlikely to be considered for prosecution under this statute.

The provisions of ss. 403.161(5), Florida statutes are much more useful to environmental crime enforcement. This section also refers back to earlier parts of the statute, ss. 403.161(1)(b) and (c)*:

(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority65.

(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter66.

(5) Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each offense67.

This section revolves around permits required by Chapter 403, and the requirements contained in the operating and monitoring conditions written into the permits. The elements underlined above are usually easy to prove but may be confusing in the way they are presented here and in the statute. The elements of complete charges can follow different paths depending upon the circumstances of the case. The elements of two example circumstances are listed in the side box.

Willfulness under this section may be easily proven by examining the regulatory interaction of the defendant with the department. If the defendant has applied for permits for similar activities before or operates similar permitted facilities, or has a history of non-compliance and administrative enforcement the likelihood of willful violations is strong. It is important that no provision is made for ‘negligent’ failure to obtain a permit. The strategy of the statute is oriented toward civil or administrative enforcement for those without prior exposure to the regulatory process, but criminal enforcement for those experienced in the regulatory process who chose to ignore it.

63 Prohibitions, Section 403.161 (1) (a), Florida statutes (2000) 64 Prohibitions, Section 403.161(3), Florida Statutes (2000) 65 Prohibitions, Section 403.167 (1) (b), Florida statutes (2000) 66 Prohibitions, Section 403.161 (1) (c), Florida Statutes (2000) 67 Prohibitions, Section 403.161(5), Florida Statutes (2000)

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Penalties under ss. 403.161, Florida Statutes are enhanced above those authorized under ss. 775.083, Florida Statutes; they are increased ten-fold68. The jail-terms remain those prescribed in ss. 775.082, Florida Statutes. This is consistent with the Legislative intent for this section expressed in ss. 403.161 (6), Florida Statutes69:

It is the legislative intent that the civil penalties and criminal fines imposed by the court be of such amount as to ensure immediate and continued compliance with this section.

Ss. 403.161(3) contains a provision for multiple felony charges for each day of causing pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life or property. Each day of continued violation may be considered a separate charge or ‘count’. However, it is important to note that the language allowing multiple day felony charges is not repeated in ss. 403.161(4) or (5) for misdemeanors.

Wetland protection Wetland construction has been regulated in Florida at the state level for more than thirty years, first as a state-owned submerged lands issue, and later as a means of preserving water quality, flood storage, and wildlife habitat. Wetland protection is controversial because it is deemed to conflict with property ownership rights; swampland can be purchased inexpensively, filled and resold profitably. Until 1993, Florida wetland regulation had become progressively more complex. Wetland regulatory jurisdiction was exerted by Army Corps of Engineers, the Department of Environmental Regulation, Florida’s water management districts, and many of Florida’s sixty-seven counties. In 1993, the program in Florida changed to define two jurisdictional boundaries, state and federal. In addition, local permitting responsibilities were divided between the Department of Environmental Protection and four of the five Water Management Districts. Local regulation through local jurisdictional boundaries was legislatively preempted. The regulatory statute was rewritten in Chapter 373, Florida Statutes The U.S. Fish and Wildlife Service has estimated that on a national basis wetlands have been lost at the rate of over 60 acres per hour over the 200 years between 1780 and 1980. The Defenders of the Environment report the statistics for Florida in their Status Report on America’s Vanishing Habitat and Wildlife. This loss of wetlands is tragic because wetlands perform many functions that are essential to the health and well being of Florida’s environment and economy. Some of these functions are: • Protecting water quality • Storing and mitigating floodwaters • Recharging groundwater resources • Providing wildlife habitat • Providing recreational opportunities • Providing natural products for the economy Wetlands are typically lost to economic forces: • Urbanization • Agriculture • Industrial development • Mining • Mosquito control • Flood control 68 Prohibitions, Section 403.161 (3), (4) & (5), Florida Statutes 69 Prohibitions, Section 403.161(6), Florida Statutes

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Wetland regulatory jurisdiction Florida’s wetlands are regulated under Chapter 373, Florida Statutes. The regulation of wetlands and all other water policy matters is a cooperative effort between the department and the five Florida Water Management Districts (WMD). Section 373.016 (5) Florida Statutes states:

It is therefore the intent of the Legislature to vest in the Department of Environmental Protection or its successor agency the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. The department may exercise any power herein authorized to be exercised by a water management district; however, to the greatest extent practicable, such power should be delegated to the governing board of a water management district.

To effectively regulate wetlands they must be defined. Because they vary so widely, their definition is written in terms of ‘predominance’ of wetland vegetation, and ‘presence of hydric soils, rather than geographic definition. The starting point is any main flow channel of any named water body in the state. FAC Rule 64-312 states: • (2) For the purposes of this rule, surface waters of the state are those waters listed below and excavated

water bodies, except for waters exempted by Rule 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below:

o (a) Atlantic Ocean out to the seaward limit of the state's territorial boundaries; o (b) Gulf of Mexico out to the seaward limit of the state's territorial boundaries;

o (c) bays, bayous, sounds, estuaries, lagoons and natural channels and natural tributaries

thereto;

o (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in Subsection 403.913(5), F.S…

o (e) natural lakes, except:

• 1. those where one person, other than the state, owns the entire lake to its landward extent as delineated by applicable Department rule; or

• 2. those that become dry each year and are without standing water; or

• 3. those of no more than 10 acres in landward extent with a maximum

average depth of 2 feet or less existing throughout the year;

o (f) the waters as defined in Section 403.031(12)(a) and Section 403.031(12)(b), F.S. o (g) waters within mosquito control impoundments constructed as part of a

governmental mosquito control program, excluding those portions which have become jurisdictional based on a change to vegetative dominance as defined in Rule 62-301.400, F.A.C., solely because of construction of the impoundment…

Having defined jurisdictional waters the landward extent of these waters must be defined as well. FAC Rule 62-312.04570 states:

70 Jurisdictional Intent, Florida Administrative Code Rule 62-312.045

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The Department recognizes that the natural border of certain water bodies listed in Rule 62-312.030, F.A.C., may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in Rules 62-301.400 and 62-3.021(15), F.A.C., is to guide in the establishment of the border of the water bodies listed in Rule 62-312.030, F.A.C. It is the intent of this rule to include, in the boundaries of such water bodies, areas which are customarily submerged and which are contiguous to a recognizable water body (i.e., areas within the landward extent of waters of the state as defined in Rule 62-3.021(15) and (16), F.A.C.). Isolated areas that infrequently flow into or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department. The vegetation indices in Rules 62-301.400 and 62-3.021(15), F.A.C., are presumed to accurately delineate the landward extent of such water bodies.

FAC Rule 62-340 establishes the delineation methods to be used to determine the landward extent of state jurisdictional wetlands. Jurisdictional determination progresses upland as described in FAC Rule 62-340 using the vegetation species indicators FAC Rule 62-301.400. State jurisdictional declaratory statements: Property owners can have jurisdictional wetlands boundaries located on their property by the department. These boundaries can be surveyed in and placed on plot plans of the property. These determinations are made under the conditions specified in FAC Rule 62-312.040 and provides the owner an official jurisdictional line for five years as long as site physical conditions remain unchanged. This may be important in certain criminal enforcement cases where violations occur in the face of a jurisdictional declaratory statement. Permitting wetland activities Wetland regulations contain a large number of permitting exemptions. These many exemptions are another reason environmental investigators must consult with a DEP District wetlands biologist. The exemptions are contained in FAC Rule 62-312.050. Consult the full text of the rule before taking any actions where one of these exemptions may apply. General Permits for certain types of activities are authorized under FAC Rule 62-341. General Permits are permits authorized by rule or statute provided the permittee notifies the department of his intent to use the General Permit and complies with the requirements of the applicable rule or statute. Investigation of individual cases may require careful review of the requirements of FAC Rule 62-341. Environmental Resource Permits: State wetland permits are called “Environmental Resource Permits (ERP)”. Responsibility for Environmental Resource Permits on the state level is divided between the department and four of the five water management districts under interagency agreements authorized under ss. 373.046, Florida Statutes. The focus of the interagency agreements is to divide responsibility for the statewide program so that each agency would be able to focus assets and budget resources on the wetland areas most closely aligned with their respective missions. The participating water management districts are: • Suwannee River Water Management District • St. Johns River Water Management District • Southwest Water Management District • South Florida Water Management District . The basis of the split is that the department continues to permit coastal projects and those inland projects associated with other department permits such as industrial sources, wastewater treatment plants and

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similar sources. The water management districts permit general land development, residential development, agricultural development and associated stormwater management projects. To accomplish this program, the department adopted key administrative code rules of the various water management districts and applies them to the projects the department is responsible for permitting. FAC Rule 62-343.050 requires permits be issued for any construction projects in jurisdictional wetlands which are not exempted under department rules or water management district rules.

Criminal enforcement

The enforcement provisions for wetlands were copied verbatim from ss. 403.161, Florida Statutes and placed into ss. 373.430, Florida Statutes in 1993. This provided the means to address enforcement of wetlands violations under Chapter 373 rather than Chapter 403.

Wetlands violations are most often committed with clear knowledge of the law; sometimes, after having applied for a permit and turned down. Sometimes they are committed when the permittable project is significantly different from the project desired by the applicant. In almost all criminal wetlands cases there has been interaction concerning the project with the department or water management district.

State wetland violations are addressed under ss. 373.430, Florida Statutes. The language of ss. 373.430 is exactly the same as ss. 403.161. The criminal provisions begin with71*:

(1) It shall be a violation of this chapter, and it shall be prohibited for any person:

(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

Felonies are “willful” violations72

(3) Any person who willfully commits a violation specified in paragraph (1)(a) is guilty of a felony of the third degree, punishable as provided in ss. 775.082(3)(d) and 775.083(1)(g), by a fine of not more than $50,000 or by imprisonment for 5 years, or by both, for each offense. Each day during any portion of which such violation occurs constitutes a separate offense.

[* Underlined word and phrases denote elements that must be proven.]

The wording of the definition of “person” changes slightly in ss. 373.019 (12) from ss. 403.031(5)73 but its practical application as a statutory element is essentially the same:

(12) “Person" means any and all persons, natural or artificial, including any individual, firm, association, organization, partnership, business trust, corporation, company, the United States of America, and the state and all political subdivisions, regions, districts, municipalities, and public agencies thereof. The enumeration herein is not intended to be exclusive or exhaustive.

Ss. 373.403 (13) & (14), Florida Statutes defines “dredging” and “filling” as:

(13) “Dredging" means excavation, by any means, in surface waters or wetlands, as delineated in ss. 373.421(1). It also means the excavation, or creation, of a water body which is, or is to be, connected to surface waters or wetlands, as delineated in ss. 373.421(1), directly or via an excavated water body or series of water bodies.

71 Prohibitions, violations, penalty, intent, ss. 373.430 (1)(a), Florida Statutes 72 Prohibitions, violation, penalty, intent, ss. 373.430 (3), Florida Statutes 73 Definitions, ss. 373.019 (12), Florida Statutes

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(14) “Filling" means the deposition, by any means, of materials in surface waters or wetlands, as delineated in ss. 373.421(1).

However, neither “dredging” nor “filling” are activities that are, themselves, elements of ss. 373.430. The activity element for 373.430 is “…causing pollution…”. “Pollution” is not defined in Chapter 373. It is a term associated with Chapter 403. Ss. 403.031 (6) defines “pollution as:

(5) “Pollution" is the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or manmade or human-induced impairment of air or waters or alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation unless authorized by applicable law.

Dredging and filling of wetland would be expected to be a “…human-induced impairment of… waters or the alteration of the… biological… integrity of…water in quantities or at levels which are or may be potentially harmful or injurious to… animal or plant life…”. Unfortunately, without a definition of pollution in Chapter 373, the nexus between dredging and filling activities regulated by chapter 373 and the “pollution” caused “…so as to harm or injure…” must be explained by legislative history rather than by statutory construction. Ss. 373.430 (4), Florida Statutes contains the same culpable negligence language as ss. 403.161 (4)74*:

(4) Any person who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082(4)(b) and 775.083(1)(g), by a fine of not more than $5,000 or 60 days in jail, or by both, for each offense. [* Underlined words and phrases denote elements that must be proven.]

This paragraph is subject to the same levels of proof and conflict in terms as ss. 373.430 (3) and the penalty is insufficient to be an effective deterrent in most cases. Therefore, this provision is seldom used to prosecute environmental crimes. The predominant wetlands violations are permit violations; either failure to obtain a permit, or failure to comply with a permit. As in ss. 403.161 (5), the permit (and falsification) related criminal charges refer back to ss. 373.430 (b) and (c). Ss. 373.430 (1) (b) and (c)75 state*:

(b) To fail to obtain any permit required by this part or by rule or regulation adopted pursuant thereto, or to violate or fail to comply with any rule, regulation, order, or permit adopted or issued by a water management district, the department, or local government pursuant to their lawful authority under this part. (c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this part, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this part or by any permit, rule, regulation, or order issued under this part.

Ss. 373.430 (5) then states:

(5) Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082(4)(a) and

74 Prohibitions, violations, penalties…, ss. 373.430 (4), Florida Statutes 75 Prohibitions, violations, penalties,…ss. 373. 430 (1) (b) & (c), Florida Statutes

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775.083(1)(g), by a fine of not more than $10,000 or by 6 months in jail, or by both, for each offense. [* Underlined words and phrases denote elements that must be proven.]

Wetlands permitting violations are common and easily investigated and charged. However, due to lack of public awareness of the environmental value of wetlands, juries are often sympathetic to the defendant. However, wetlands permit violations have been successfully charged and have resulted in effective deterrence. Avatar Corporation and Amikam Tanel v. State of Florida (91424, 10/22/98) was such a case that made it to the Florida Supreme Court76. In Avatar, a development company in Broward County was charged with violation of the special conditions of a dredge and fill permit and resulting water quality violations. At trial the State Circuit Court dismissed the case by declaring that criminal enforcement of the special conditions in a environmental permit was an exercise of undelegated legislative discretion by the department. The allegation was that the department makes up permit conditions to fit the circumstances of the project and that these special conditions have the force and effect of law. Avatar took the position that since these special conditions are not legislated, they are not criminally enforceable. The appellate court reversed the local circuit, and the Florida Supreme Court upheld the both the appellate court decision and the statute. This was an important affirmation of the validity of the department’s authority to regulate wetlands and the authority to enforce those regulations criminally. Falsification of documents is an important part of this section as cases have been investigated where property records, project designs and other critical information have been falsified in order to obtain permits. Falsification of water quality monitoring samples and/or analysis also occurs. State-owned submerged lands Water quality, habitat protection and flood attenuation are not the only important enforcement issues associated with wetlands. Florida’s Trustees of the Internal Improvement Trust Fund exert proprietary property rights claims on behalf of Florida’s citizens to land held in state ownership. The Governor and Cabinet, sitting as the Trustees of the Internal Improvement Trust Fund, make decisions concerning the appropriate management of state-owned lands. The Trustees operate through the department’s Division of State Lands. The Division of State Lands provides oversight for approximately 11 million acres of state lands, including more than 7,000 lakes and 4,510 islands of 10 acres or more in size. The protection and proper management of all state-owned lands is important, but this discussion focuses exclusively on sovereignty-submerged lands. Sovereignty submerged lands are the bottoms of rivers and meandered lakes below the ordinary high water line, and coastal submerged lands below the mean high water line. Sovereignty submerged lands are those submerged lands ceded to Florida by the federal government when Florida originally became a state. Sovereignty submerged lands are regulated under Chapter 253, Florida Statutes. In order to use sovereignty-submerged lands, a lease or other property use agreement approved by the Trustees must be obtained. For commercial land uses such as marinas, commercial docks, off-loading facilities, etc. a lease must be obtained and lease fees must be paid to the state. Because the use of sovereignty-submerged lands is intimately related to dredging and filling activities the sovereignty submerged lands issues associated with wetlands construction projects are carefully coordinated through the Bureau of Submerged Lands and Environmental Resources. Enforcement, however, involves separate issues and authorities and is handled differently. Ss. 253.05, Florida Statutes states:

State attorneys, other prosecuting officers of the state or county, wildlife officers of the Fish and Wildlife Conservation Commission, conservation officers, together with the Secretary of Environmental Protection, and county sheriffs and their deputies shall see that the lands owned by

76 Avatar Corporation and Amikam Tanel vs. State of Florida (91424, 10 /22/98), Florida Supreme Court

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the state, as described in ss. 253.01 and 253.03, shall not be the object of damage, trespass, depredation, or unlawful use by any person…

This provision leaves no doubt that Florida prosecutors and law enforcement officers are statutorily required to protect state lands, including sovereignty submerged lands. For the state parks, reserves, recreation areas, and monuments this is the responsibility of the department’s Bureau of Park Police. For other sovereignty submerged lands the responsibility may belong to the department’s Bureau of Environmental Investigation or to a local law enforcement agency. Enforcement normally falls under trespass (Ss. 810.08 or 810.09, Florida Statutes) for lease or other land use violations, or criminal mischief (Ss.806.13, Florida Statutes) for vandalism. Law enforcement handling of trespass or criminal mischief cases may be routine for law enforcement officers when the offense occurs in uplands. However, when sovereignty submerged lands are involved the issues may become complex and a successful case depends on close work coordination between a law enforcement officer and a submerged lands expert. Discharges and releases of pollutants Everyone who watches television can visualize the images of oil covered birds and wildlife that become victims of discharges or releases of oil from ships or other sources. Usually such catastrophic releases of oil or hazardous substances are results of transportation accidents, but many smaller releases that occur each day are either deliberate or careless. In addition to the actual releases that make it into soil or water, there are many potential releases of oil or hazardous substances that occur each day when people deliberately dump or abandon chemicals in drums, tanks or other containers and leave them where they can leak into soil or groundwater and threaten public health and safety. Numerous state and federal laws have been enacted to address these problems. This section examines discharges of oil and hazardous substances to soil and waters and the state statutes that apply to such discharges. Abandoned containers of chemicals will be discussed in the section “Hazardous wastes” later in this document.

The Florida Pollutant Discharge Prevention and Control Act

Chapter 376, Florida Statutes is the Florida Pollutant Discharge Prevention and Control Act. Administration of Chapter 376 is the department’s responsibility. The statute is divided into two sections; coastal discharges and inland discharges. As in all statutes, the legislative intent is important to understanding the application of the statute:

(3) The Legislature further finds and declares that:

(a) The transfer of pollutants between vessels, between onshore facilities and vessels, between offshore facilities and vessels, and between terminal facilities within the jurisdiction of the state and state waters is a hazardous undertaking;

(b) Spills, discharges, and escapes of pollutants occurring as a result of procedures involved in the transfer, storage, and transportation of such products pose threats of great danger and damage to the environment of the state, to owners and users of shore front property, to public and private recreation, to citizens of the state and other interests deriving livelihood from marine-related activities, and to the beauty of the Florida coast;

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(c) Such hazards have frequently occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the state as herein set forth77;…

Some key definitions should be understood:

(16) “Pollutants" includes oil of any kind and in any form, gasoline, pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas78.

(7) “Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, emitting, emptying, or dumping which occurs within the territorial limits of the state or outside the territorial limits of the state and affects lands and waters within the territorial limits of the state79.

(14) “Person" means any individual, partner, joint venture, corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity80.

Note that “pollutants” under this statute are different than “pollutant(s)” under the Clean Water Act.

The department’s authority and responsibility under Chapter 376 extends throughout the state as the boundaries of the state are defined in Section 1, Article II of the Florida Constitution. The Florida State boundaries extend three miles into the Atlantic Ocean and three leagues (nine miles) into the Gulf of Mexico.

Ss. 376.041 prohibits the discharge of pollutants:

The discharge of pollutants into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state in the manner defined by ss. 376.011-376.21 is prohibited81.

Chapter 376 requires that operators of terminal facilities obtain a “Discharge Prevention and Response Certificate” from the department. In additional, coastal facilities and vessels are required to have discharge contingency plans and to take the necessary actions to remove any discharge pollutants. In the event that Florida must take action to remove pollutants, the Florida Coastal Protection Trust Fund is created in Chapter 376 to fund removal activities. Liability of the owners and operators (and cargo owners) of vessels and facilities are established under Chapter 376, including acceptable defenses. Chapter 376 also contains a reporting requirement similar to the reporting requirements in 42 USC 9603 or 33 USC 1321:

…any person responsible who fails to give immediate notification of a discharge to the department or the nearest Coast Guard Marine Safety Office or National Response Center commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.0882. However, a discharge of 5 gallons or less of gasoline or diesel from a vessel shall not give rise to felony penalties for failure to comply with the state notification requirements in this subsection.

Chapter 376 requirements expand in inland zones to include both pollutants and “hazardous substances” as defined in 42 USC 9601 (40 CFR 302.4). The definition of “discharge” is expanded to include “misapplying” to pick up misapplication of pesticides. Other terms are defined that apply directly to some of the programs that derive from Section 376.30, et seq. Such derivative programs include the vehicular

77 Legislative intent with respect to pollution of coastal waters and lands, Ss. 376.021 (3) (a)-(c), Florida Statutes 78 Definitions, Ss. 376.031 (16), Florida Statutes 79 Definitions, Ss. 376.031 (7), Florida Statutes 80 Definitions, Ss. 376.031 (14), Florida Statutes 81 Pollution of waters and lands of the state prohibited, Ss. 376.041. Florida Statutes 82 Notification requirements…, Ss. 376.12 (11), Florida Statutes

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fuel storage tank program, the leaking underground storage tank cleanup program, the dry-cleaning facility restoration program, the compression vessel program and others. The Legislature re-stated its intent for the inland portions of Chapter 376:

(a) The storage, transportation, and disposal of pollutants, drycleaning solvents, and hazardous substances within the jurisdiction of the state and state waters is a hazardous undertaking; (b) Spills, discharges, and escapes of pollutants, drycleaning solvents, and hazardous substances that occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products pose threats of great danger and damage to the environment of the state, to citizens of the state, and to other interests deriving livelihood from the state;

(c ) Such hazards have occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the state as set forth in this section83;…

The inland portion of Chapter 376 creates two major operational trust funds, the Water Quality Assurance Trust Fund (WQATF) and the Inland Protection Trust Fund (IPTF). The WQATF is primarily designed to:

(a) To carry out the provisions of ss. 376.30-376.319, relating to assessment, cleanup, restoration, monitoring, and maintenance of any site involving spills, discharges, or escapes of pollutants or hazardous substances which occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products84.

The WQATF also provides emergency drinking water to replace contaminated drinking water sources and enables many other functions necessary to managing chemically contaminated sites. The IPTF is designed to provide resources to manage environmental contamination caused by storage of petroleum products for consumer use. Its uses are described in ss. 376.3071 (4), Florida Statutes. Implementation of the emergency response provisions of Chapter 376 is the responsibility of the department’s Bureau of Emergency Response (BER). BER staff members are especially trained in incident command, containment, management and cleanup of discharges of oil and hazardous substances to the environment. They are able to handle incidents by using emergency contractors who are especially trained to work safely and effectively to contain and cleanup environmental releases. They work closely with the State Emergency Operations Center (SEOC) and local emergency response personnel to focus a variety of state and local resources on managing the incident. Working with the federal Regional Response Team, they are able to bring federal resources to bear if the incident is sufficiently large to warrant a federal response. BER emergency response operations are funded by a combination of WQATF and IPTF monies. Parties responsible for discharges or releases are responsible for reimbursing the applicable trust funds. BER must use the department’s legal authority to attempt recovery of trust fund money when the responsible parties are not cooperative. One of the most serious chemical emergency response problems in Florida involves the dumping or abandonment of containerized waste chemicals on roadsides, or private property throughout Florida. Between January 1996 and June 1999, BER responded to 823 such incidents at a cost to Floridians of $1,398,40185. Besides the cost associated with the dumping of containerized chemicals, there is a serious price to pay by potential public chemical exposure. Public health and safety are primary concerns in handling these incidents.

83 Legislative intent with respect to pollution of surface and groundwaters, Ss. 376.030 (2) (a)-(c), Florida Statutes 84 Water quality assurance trust fund, Ss. 376.307 (1) (a), Florida Statutes 85 Proactive targeting initial analysis of BER chemical container dumping…, Bureau of Environmental Investigations (1999)

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Another special problem in Florida is oil discharges associated with vessels. In 2000, Florida had 840,684 registered recreational vessels. However, Florida also supports an active commercial fishing industry and large-scale commercial shipping interests. The result is that Florida waters are everyday victims of oily bilge discharges, oil discharges resulting from vessel sinking due to heavy weather, vessel collisions and many other occurrences. “Ghost” oil discharges are very common problems that collectively affect Florida waters. “Ghost” discharges because they are unidentified, and the vessel that caused them is usually gone before response personnel can arrive at the scene. If a significant oily sheen is seen on the water it should be reported to the nearest BER office, the State Warning Point, or the National Response Center. The telephone numbers to be used in reporting are in Appendix “A” Criminal enforcement The criminal provisions of Chapter 376 are important to deterring deliberate discharges of pollutants but are seldom charged. Criminal sanctions are provided for failure to report a discharge or release of pollutants, for failing to remain within the department’s jurisdiction pending liability determination, for discharges of pollutants, for vandalism of petroleum storage systems and for failure to report serious pollutant leaks. Ss. 376.12 (11) provides:

(11) …In addition to any civil penalties which may apply, any person responsible who fails to give immediate notification of a discharge to the department or the nearest Coast Guard Marine Safety Office or National Response Center commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.08486.

Therefore, failure to report discharges or releases of pollutants is punishable as a felony. It is important to remember that the discharge referred to is a discharge of pollutants, and pollutants are:

(16) “Pollutants" includes oil of any kind and in any form, gasoline, pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas87.

Pollutants do not include hazardous substances within the meaning of 33 USC 1321 or 42 USC 9601, although some of those hazardous substances may inadvertently be included in this definition. The felony penalties imposed are those of ss. 775.082 and ss. 775.083; fines up to $5000 and incarceration up to five years88. Ss. 376.12 (11) also requires vessels that report discharges remain within the department’s jurisdiction until the department determines financial responsibility for the damages resulting from the discharge. There are criminal provisions for leaving the jurisdiction of the department before financial responsibility is determined:

The master of a vessel that fails to remain in the jurisdiction of the department for a reasonable time after notice of a discharge commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 77589.

Once again, the penalties are the baseline penalties established in Chapter 775, Florida Statutes. Chapter 376.302 provides general criminal charges for discharges of pollutants or hazardous substances to land, surface or groundwaters. This language in this section is similar to the language of ss. 403.161 and was originally modeled after that section. Like ss. 403.161., ss. 376.302 begins with prohibitions:*

86 Liabilities, defenses…, Ss. 376.12 (11), Florida Statutes 87 Definitions, Ss. 376.031(16), Florida Statutes 88 Florida Criminal Code, Chapter 775, Florida Statutes 89 Liabilities and defenses…, Section 376.12 (11), Florida Statutes

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(1) It shall be a violation of this chapter and it shall be prohibited for any reason:

(a) To discharge pollutants or hazardous substances into or upon the surface or ground waters of the state or lands, which discharge violates any departmental “standard" as defined in ss. 403.803(13)90.

A “standard” as defined in ss. 403.803 (13) is:

(13) “Standard" means any rule of the Department of Environmental Protection relating to air and water quality,…91

A violation of any department environmental rule that results in a discharge of pollutants or hazardous substances to land, surface waters or groundwaters is prohibited under this section. Paragraph (b) follows:

(b) To fail to obtain any permit or registration required by this chapter or by rule, or to violate or fail to comply with any statute, rule, order, permit, registration, or certification adopted or issued by the department pursuant to its lawful authority92.

Ss. 376. 302 (3) references ss. 376.302 (1) to provide a first-degree misdemeanor:

(3) Any person who willfully commits a violation specified in paragraph (1)(a) or paragraph (1)(b) shall be guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g), by a fine of not less than $2,500 or more than $25,000, or punishable by 1 year in jail, or by both for each offense. Each day during any portion of which such violation occurs constitutes a separate offense93. [* Underlined words and phrases denote elements that must be proven.]

The financial penalties in this section are significantly enhanced above the ss.775.083 (d) penalties of $1000 for a first-degree misdemeanor; from 2.5 times to 25 times Chapter 775.083 levels. No multi-day penalties or enhanced penalties for subsequent violations are provided in this section. Ss. 376.302 (1) (c) states:*

(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, registration, rule, or order issued under this chapter94.

Ss. 376.302 (4) refers to ss. 376.302 (1) (c) to provide another first degree misdemeanor:

(4) Any person who commits a violation specified in paragraph (1)(c) shall be guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g), by a fine of not more than $10,000, or by 6 months in jail, or by both for each offense95.

[* Underlined words and phrases denote elements that must be proven.] The financial penalties in this section are multiplied by up to ten times the maximum amount allowed for first-degree misdemeanors under Chapter 775. However, the potential incarceration is reduced to a

90 Prohibited acts; penalties, Section 376.302 (1) (a), Florida Statutes 91 Definitions, Section 403.803 (13), Florida Statutes 92 Prohibited acts; penalties, Section 376.302 (1) (b), Florida Statutes 93 Prohibited acts; penalties, Section 376.302 (3), Florida Statutes 94 Prohibited acts; penalties, Section 376.302 (1) (c), Florida Statutes 95 Prohibited acts; penalties, Section 376.302 (4), Florida Statutes

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maximum of six months. No multi-day penalties or enhanced penalties for subsequent violations are provided in this section. Ss. 376.302 (5) is a fraud prohibition that refers to requests for reimbursement from the Inland Protection Trust Fund under the petroleum storage tank restoration program. It is third-degree felony:

(5) Any person who commits fraud in representing their qualifications for reimbursement or in submitting a reimbursement request pursuant to ss. 376.3071(12) commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.08496.

The penalties are not enhanced over the baseline Chapter 775 penalties. Ss. 376.3071 (10) provides a felony charge for falsification of inventory records at petroleum storage facilities in order to hide evidence of a serious leak:

(a) Falsify inventory or reconciliation records maintained in compliance with chapters 62-761 and 62-762, Florida Administrative Code, with willful intent to conceal the existence of a serious leak;

And a felony charge for intentionally damaging a petroleum storage system:

(b) Intentionally damage a petroleum storage system.

Any person convicted of [a violation of ss. 376 3071 (10) (a) or (b)] shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.08497. The “Brownfields” initiative is designed to re-develop and re-use chemically contaminated industrial property for new industrial uses. The Florida Brownfields initiative allows contaminated sites planned for industrial reuse to have lower cleanup levels imposed consistent with their planned land use. Therefore, it is essential that the department be able to depend upon the land use information provided by the site’s owners and developers. A first-degree misdemeanor charge is provided in ss. 376.83 as follows:

(1) It is a violation of ss. 376.77-376.85, and it is prohibited for any person, to knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under ss. 376.77-376.85, or by any permit, rule, or order issued under this chapter or chapter 403.

(2) Any person who willfully commits a violation specified in subsection (1) is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $10,000 or by 6 months in jail, or by both, for each offense. Each day during any portion of which such violation occurs constitutes a separate offense98.

Many criminal offenses are described in Chapter 376, but few are actually charged. One important reason is that discharge violations are misdemeanors, even though they have significantly enhanced financial penalties associated with them, misdemeanors are usually considered to lack the necessary deterrent effect on major operators of vessels or facilities. It is most likely that significant discharge events would be criminally charged under federal laws rather than state law. The matter of dumped or abandoned chemical containers previously mentioned in section 13.2 as a serious emergency response issue in Florida is most often charged under the Florida Litter Law, (ss. 403.413) or Florida hazardous waste statutes which will be discussed later in this document.

96 Prohibited acts; penalties, Section 376.302 (5), Florida Statutes 97 Inland Protection Trust Fund, Section 376.3071 (10), Florida Statutes 98 Violation; penalties, Section 376.83, Florida Statutes

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The Resource Conservation and Recovery Act (RCRA) Proper management of regulated chemical wastes under RCRA is exceedingly expensive and complex. The core concept is that of “cradle to grave” liability; the person or business that generates regulated chemical waste is civilly responsible for it forever, unless the waste is completely detoxified or completely destroyed. Very strict permitting standards are imposed for treatment, storage or disposal facilities. Although not required to be permitted, generators and transporters of regulated chemical wastes are required to meet strict performance standards. Compliance inspections by regulatory staff may occur at any time, especially in response to complaints to regulatory agencies, and the civil penalties for non-compliance are extremely high. The primary regulatory focus is on large facilities that generate the majority of the chemical wastes. Unfortunately, the smaller generators and “conditionally exempt” generators have both the economic motive and the regulatory opportunity to illegally dispose of regulated chemical wastes and create soil and water contamination in the process. The most important term in RCRA is “hazardous waste”. “Hazardous waste” is term of art defined specifically for RCRA. “Hazardous waste” must first be a “solid waste”, so the term “solid waste” must be defined first99:

(27) The term "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) (42 U.S.C. 2011 et seq.).

Solid waste is different than many would expect because it includes liquid and semi-solid materials, even contained gases. The definition of solid waste is not based on the physical states of the matter that comprises the waste, but on the regulatory requirements that are placed on it. Solid waste, unless it is also a pollutant being discharged to surface water, is not regulated under the Clean Water Act. Neither is solid waste, absent unusual circumstances, regulated under the Clean Air Act. Therefore, solid waste may be regulated under RCRA without extensive reliance on the requirements of the other statutes. Hazardous waste is100:

(1) The term "hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

Regulatory requirements and procedures are found in 40 CFR, parts 260-2. They are presented step-wise here for simplicity.

99 Definitions, 42 USC 6903 (27) 100 Definitions, 42 USC 6903 (5)

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Step 1-Waste determination: The “cradle to grave” regulatory scheme begins with waste determination. Waste determination is the duty of all generators of solid wastes to determine whether the wastes they generate are regulated hazardous wastes101:

A person who generates a solid waste, as defined in 40 CFR 261.2, must determine if that waste is a hazardous waste using the following method:

(a) He should first determine if the waste is excluded from regulation under 40 CFR 261.4.

(b) He must then determine if the waste is listed as a hazardous waste in subpart D of 40 CFR part 261.

(c) For purposes of compliance with 40 CFR part 268, or if the waste is not listed in subpart D of 40 CFR part 261, the generator must then determine whether the waste is identified in subpart C of 40 CFR part 261 by either:

(1) Testing the waste according to the methods set forth in subpart C of 40 CFR part 261, or according to an equivalent method approved by the Administrator under 40 CFR 260.21; or

(2) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.

(d) If the waste is determined to be hazardous, the generator must refer to parts 261, 264, 265, 266, 268, and 273 of this chapter for possible exclusions or restrictions pertaining to management of the specific waste

The waste lists are broken into four distinct categories:

• Wastes from non-specific sources102- These are spent solvents and process wastes from general uses and industrial processes. These wastes use the waste code “F” and therefore, called “F” wastes. Examples are:

o F-001 – a specific list of halogenated (contains chlorine, bromine, iodine etc.)

solvents used in degreasing. An example would be methylene chloride used to degrease circuit boards prior to plating.

o F-007- Cyanide plating bath solutions from electroplating operations. All cyanide plating bath solutions are included without regard to the specific type of plating.

• Wastes from specific sources103- These are wastes from specific industrial processes. These

wastes use the waste code “K” and are called “K” wastes. Examples are:

o K-049-Slop oil emulsion solids from the petroleum refining industry. This is a

specific waste from a specific source in a specific process. o K-061-Emission control dust/sludge from the primary production of steel in electric

furnaces. This is also a specific waste from a specific industrial process.

101 Waste determination, 40 CFR 262.11 102 Hazardous wastes fron non-specific sources, 40 CFR 261.31 103 Hazardous wastes from specific sources, 40 CFR 261.32

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• Discarded commercial chemical products, off-specification species, container residues, and spill residues104- These materials are hazardous wastes when they are discarded, mixed with other wastes such a waste oils, container residues, cleanup residues from spills or leaks or are off-specification chemicals due to any number of reason ranging from expired shelf-life to contamination of some kind. Two type of chemical wastes are listed under this section. Those that use the waste code “P”. “P” wastes are acutely toxic (commonly referred to a “toxic wastes”). Those that use the waste code “U” are also in this section. “U” coded wastes are also listed for toxicity, but may listed for other hazardous characteristics as well. Examples are:

o P-010-Arsenic acid and P-089-Parathion; these are both acutely toxic waste

materials.

o U-019- Benzene and U-210- Tetrachloroethylene; both are toxic, but not as toxic as arsenic acid or parathion.

If the waste is not listed, the generator of the waste may test the waste to determine whether if the waste exhibits one of four hazardous characteristics:

• Ignitability (D-001)105-

o The waste must be a non-aqueous liquid, or if aqueous, it must contain less than 24% alcohol, and it has a flashpoint less than 140 degrees F. (60 degrees C.), or

o It is not a liquid, but at atmospheric conditions can ignite through friction, adsorption

of moisture, or spontaneous chemical changes, and when ignited, burns vigorously and persistently, or

o It is an ignitable compressed gas under U.S. DOT regulations (49 CFR 173.300), or o It is an oxidizer under 49 CFR 173.151.

• Corrosivity (D-002)106

o The waste is aqueous and has a pH less than 2 or greater then 12.5, or o The waste is a liquid (aqueous or not) and corrodes steel at a rate greater than 0.250

inches per year at 130 degrees F. (55 degrees C.)

• Reactivity (D-003) 107

o The waste is normally unstable and undergoes violent change without detonating, or o The waste reacts violently with water, or

o The waste forms potentially explosive mixtures with water, or

104 Discarded commercial chemical products…, 40 CFR 261.33 105 Characteristic of ignitability, 40 CFR 261.21 106 Characteristic of corrosivity, 40 CFR 261.22 107 Characteristic of reactivity, 40 CFR 261.23

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o The waste reacts with water to generate toxic gasses, vapors, or fumes, or o The waste reacts with water to generate toxic gasses, vapors, or fumes, or

Maximum Concentration of Contaminants for the Toxicity Characteristic

HW No. Contaminant Level(mg/L) D004 Arsenic 5.0 D005 Barium 100.0 D018 Benzene 0.5 D006 Cadmium 1.0 D019 Carbon tetrachloride 0.5 D020 Chlordane 0.03 D021 Chlorobenzene 100.0 D022 Chloroform 6.0 D007 Chromium 5.0 D023 o-Cresol 200.0 D024 m-Cresol 200.0 D025 p-Cresol 200.0 D026 Cresol 200.0 D016 2,4-D 10.0 D027 1,4-Dichlorobenzene 7.5 D028 1,2-Dichloroethane 0.5 D029 1,1-Dichloroethylene 0.7 D030 2,4-Dinitrotoluene 0.13 D012 Endrin 0.02 D031 Heptachlor (and its 0.008 epoxide). D032 Hexachlorobenzene 0.13 D033 Hexachlorobutadiene 0.5 D034 Hexachloroethane 3.0 D008 Lead 5.0 D013 Lindane 0.4 D009 Mercury 0.2 D014 Methoxychlor 10.0 D035 Methyl ethyl ketone 200.0 D036 Nitrobenzene 2.0 D037 Pentrachlorophenol 100.0 D038 Pyridine 5.0 D010 Selenium 1.0 D011 Silver 5.0 D039 Tetrachloroethylene 0.7 D015 Toxaphene 0.5 D040 Trichloroethylene 0.5 D041 2,4,5-Trichlorophenol 400.0 D042 2,4,6-Trichlorophenol 2.0 D017 2,4,5-TP (Silvex) 1.0 D043 Vinyl chloride 0.2

[From 40 CFR 261.24, Table 1]

o The waste contains cyanide or sulfide when exposed to pH between 2 and 12.5 produces significant cyanide or sulfide gases, or it is a forbidden explosive, or a class “A” or “B” explosive under 49 CFR 173.

o The waste contains cyanide or sulfide when exposed to pH between 2 and 12.5 produces significant cyanide or sulfide gases, or it is a forbidden explosive, or a class “A” or “B” explosive under 49 CFR 173.

• Toxicity characteristic (D-004 thru D-043)108 • Toxicity characteristic (D-004 thru D-043)108

o The waste is analyzed using the “Toxicity Characteristic Leaching Procedure”, Method 1311 in EPA publication SW-846, and the extract contains more than a maximum threshold quantity of the chemicals named in Table 1, 40 CFR 261.24

o The waste is analyzed using the “Toxicity Characteristic Leaching Procedure”, Method 1311 in EPA publication SW-846, and the extract contains more than a maximum threshold quantity of the chemicals named in Table 1, 40 CFR 261.24

The generator need not analyze the waste if he has sufficient documented information through knowledge or chemical literature concerning the chemistry of the processes involved, the chemistry of the wastes, and/or manufacturer information, such Material Safety Data Sheets to make a defensible determination regarding the nature of the waste.

The generator need not analyze the waste if he has sufficient documented information through knowledge or chemical literature concerning the chemistry of the processes involved, the chemistry of the wastes, and/or manufacturer information, such Material Safety Data Sheets to make a defensible determination regarding the nature of the waste. After the waste determination analysis is complete, generators that find they generate regulated hazardous waste must determine how much of the hazardous waste they generate each month. The amount of hazardous waste generated per month determines which generator standards they must meet according to the following:

After the waste determination analysis is complete, generators that find they generate regulated hazardous waste must determine how much of the hazardous waste they generate each month. The amount of hazardous waste generated per month determines which generator standards they must meet according to the following:

• Conditionally Exempt Small Quantity Generators • Conditionally Exempt Small Quantity Generators (CESQG) - Less than 100 kg. /month

(220 lbs., or about ½ a 55-gallon drum),

CESQGs are a special category of generator that EPA considered to generate quantities of hazardous waste too small for regulation in the mainline regulatory program. Under federal regulations CESQG wastes may be disposed of at permitted hazardous waste treatment, storage or disposal facilities, state permitted municipal solid waste landfills, recycling facilities, or, treated or recycled at the generator’s facility. CESQG wastes are also exempt from manifest requirements. However, if a CESQG accumulates more than 2200 pounds (1000 Kg.) of hazardous waste at any one time they are subject to the stricter requirements applicable to Small Quantity Generators. In Florida, hazardous waste disposal is specifically prohibited in municipal solid waste landfills109. Therefore, CESQGs must use permitted hazardous waste disposal facilities, recycling facilities,

108 Toxicity characteristic, 40 CFR 261.24 109 Prohibitions, 62-701.300 (4), Florida Administrative Code

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or treat or recycle at the generating facility. In Florida, regulated hazardous waste transporters often do not transport hazardous wastes from CESQGs without manifests even though CESQGs are not required to meet manifesting requirements for their wastes.

• Small Quantity Generators (SQG) – More than 100 kg. /month (220 pounds, ½ 55-gallon drum),

but less than 1000 kg. /month (2200 pounds, or 4 55-gallon drums)

nifest

ys) or more than 6600 kg. (14,520 pounds) unless the SQG facility is also a permitted TSD110.

Generator

SQGs have slightly relaxed regulatory requirements for reporting and accumulation times. SQGs may accumulate wastes for up to 180 days on-site without shipping the waste to a permitted treatment, storage or disposal facility (TSD) [If the TSD is more than 200 miles from the SQG facility, the accumulation time extends to 270 days]. SQGs must comply with marequirements and store or dispose of their wastes at permitted hazardous waste treatment, storage or disposal facilities. An SQG may not accumulate wastes more than 180 (or 270 da

• – Greater than 1000 kg. / month (2200 pounds)

Subject to the full requirements of 40 CFR, Part 262.

tep 2- Notification of hazardous waste activity:

S

aracter entification number unique to a particular facility at a particular location. 40 CFR 262.12 states:

azardous

to iving the request the Administrator will

tment, storage, or disposal facilities that have not received an EPA identification number111.

for the

arefully. Fraudulent numbers ay be used, or “errors” are easily made by transforming letters or digits.

nvironmental crime investigator. They are on file and available from both the department and EPA.

tep 3-TSD acceptance of a waste for treatment, storage or disposal:

The generator now has sufficient information to notify EPA and /or the state of the facility’s hazardouswaste activities as required under 40 CFR 262.12. The notification document provides the department and/or EPA with basic information concerning the type and amount of waste generated, responsible party information, and facility location and contact information. EPA or the State then issues a twelve-chid

(a) A generator must not treat, store, dispose of, transport, or offer for transportation, hwaste without having received an EPA identification number from the Administrator. (b) A generator who has not received an EPA identification number may obtain one by applyingthe Administrator using EPA form 8700-12. Upon receassign an EPA identification number to the generator. (c) A generator must not offer his hazardous waste to transporters or to trea

Identification numbers are numerical except for the first three characters that are letter identifiers state in which the facility is located. Florida numbers start with FL_, most often FLD. During an investigation, the identification numbers on documents must be examined cm The notification document (EPA form 8700-12) is a valuable source of initial information for an e S

s re present. Based on the acceptance analysis, the TSD either accepts or rejects the generator’s waste.

First the generator locates a TSD facility who has an appropriate permit to handle the waste the generator produces. After contacting the TSD, and in accordance with their instructions, the generator must send a sample of the waste to the TSD for analysis. The TSD facility uses the waste sample to determine whether the waste is really compatible with their treatment, or disposal processes and what process complicationa

110 Standards applicable to generators…, 40 CFR, Part 262 111 EPA identification numbers, 40 CFR 262.12

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If the waste is accepted, the generator is notified of acceptance by the TSD. The generator can then process. If the waste is rejected, the generator must locate another

SD and begin the process of acceptance again. progress to the next step in the disposalT Step 4- Preparation of the manifest: The gene the conte

rator who transports, or offers for transportation, hazardous waste for offsite treatment,

8700-22A, according to the instructions included in the appendix to

e waste nifest.

. (d) If the transporter is unable to deliver the hazardous waste to the designated facility or the

to

e TSD er’s name, address, EPA ID

umber, and telephone number; the correct DOT shipping description of each waste chemical, and the

orters who have notified as transporters of hazardous waste, ho have the proper equipment for shipping the waste, and who have the necessary EPA identification

number. surance requirem

ch financial responsi ess in the State legal def

within plicable to the policy, with a right of reimbursement by the insured for

any such payment made by the Insurer. Each insurance policy must be evidenced by a

sponsibility for his wastes, it is to the generator’s advantage to e sure the transporter has the necessary insurance to handle spill incidents.

rator must prepare a manifest for the facility’s wastes. A manifest is a multi-copy self-carbon formnts and design of which are prescribed in the Appendix to 40 CFR 262.

(a) A genestorage, disposal must prepare a Manifest OMB control number 2050-0039 on EPA form 8700-22, and, if necessary, EPA formpart 262. (b) A generator must designate on the manifest one facility which is permitted to handle thdescribed on the ma(c) A generator may also designate on the manifest one alternate facility which is permitted tohandle his waste in the event an emergency prevents delivery of the waste to the primary designated facility

alternate facility, the generator must either designate another facility or instruct the transporterreturn the waste.

It is the generator’s responsibility to prepare the manifest. To do so, the generator must know thfacility’s address, EPA ID number, and telephone number; each transportnRCRA waste code for each waste chemical. Manifests are excellent sources of information for environmental crime investigators and should be examined carefully. Generators are responsible for selecting transpw

A prudent generator will assure that the transporter selected complies with the financial asents of FAC Rule 62-730.170 (2)112:

(a) The transporter shall have and maintain financial responsibility for sudden accidental occurrences in a minimum amount of $1,000,000 per occurrence for combined coverage of injury to persons and for damage to property and the environment from the spillage of hazardous waste while such wastes are being transported including the costs of cleaning up the spill. Su

bility shall be issued by an agent or company authorized or licensed to transact busin of Florida. Such financial responsibility shall be maintained at all times, be exclusive ofense costs, and be established by any one or a combination of the following: 1. Evidence of casualty/liability insurance on an occurrence basis with or without a deductible. With the deductible the insurer is liable for the payment of amountsany deductible ap

certificate of liability insurance or amended by attachment of an endorsement. 2. Surety bonds.

Since the generator retains ultimate civil reb Step 5- Packing and labeling the waste: All RCRA regulated wastes are U.S. Department of Transportation hazardous materials and must be

ackaged in containers meeting the requirements of 49 CFR Parts 173, 178 or 179. It is the generator’s p

112 Standards applicable to transporters of hazardous waste, Florida Administrative Code Rule 62-730.170 (2)

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responsibility to assure that the waste is appropriately packaged. The waste containers must be labeled and marked as required by 49 CFR 172. Hazardous

HAZARDOUS WASTE--Federal Law Prohibits Improper Disposal.

e or public safety authority or the U.S. ncy.

andard hazardous waste container label. This standard label is usually printed in red n a yellow background and contains space for the accumulation start date, DOT hazardous material

ntact information, manifest number and the other mandatory arking information.

waste container labels must contain specific information as follows113,114:

If found, contact the nearest policEnvironmental Protection Age

Generator's Name and Address Manifest Document Number

Generators must have containers labeled during accumulation of hazardous wastes. The labels must say “Hazardous Waste” and the accumulation state date must be clearly marked. The accumulation requirements of 40 CFR 262.34 and the marking requirements of 40 CFR 262.32 are combined in a commonly available stodescription, EPA waste code, generator com Step 6- Shipping the waste to the TSD: The transporter loads the waste containers at the generator’s facility. The generator must sign the and date

hich has

nce leaving the generating facility the transporter should transport the waste directly to the TSD.

accept for

eatment, storage of disposal. If the waste is deemed acceptable by the TSD, a representative of the TSD

ncy indication space” (space #19) on the manifest. The resolution of the

iscrepancy will also be noted. If discrepancies cannot be rectified within fifteen days, the TSD must file a

d around and sent back to the generator’s facility. The generator must begin the rocess again with another TSD.

the manifest, obtain the signature of the transporter on the manifest, retain a copy of the manifest wbeen signed by both parties, and give the remaining signed copies to the transporter115. OHowever, transporters may store wastes in their original shipping containers in transfer facilities for up to ten days while in transit without being required to obtain a storage permit116. Upon arrival at the TSD, it is likely that the hazardous waste will not be accepted immediately. The TSDwill sample the waste to determine if the waste shipped to them is the same waste they agreed totrwill sign the manifest. The TSD and transporter both retain a copy of the signed manifest, and a signed copy is returned to the generator as evidence that the waste arrived at the TSD for processing. If the TSD finds that the waste is not acceptable for some reason, a representative of the TSD will note thereason for rejection in the “discrepaddiscrepancy report with the state or EPA. Often the resolution will be “waste returned to generator” if the TSD cannot handle the waste. The transporter is then turnep Step 7-Operating record: Each perinformat

mitted TSD is required to maintain an operating record (log) of hazardous waste operations. The ion required includes (but is not limited to) the following:

113 Marking, 40 CFR 262 32 114 Marking, 49 CFR 172.304 115 Use of the manifest, 40 CFR 262.23 116 Transfer facility requirements, 40 CFR 263.12

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(1) A description and the quantity of each hazardous waste received, and the method(s) and date(s)of its treatment, storage, or disposal at the facility as required by appendix I; (2) The location of each hazardous waste within the facility and the quantity at each location. For

sal facilities, the location and quantity of each hazardous waste must be recorded on a map or

document numbers, if the waste was accompanied by a manifest;

of the hazardous waste at the TSD in the operating record completes the “cradle to rave” tracking system for the wastes.

us waste management program in lieu of EPA. The epartment’s authority is derived from ss. 403.704. Florida prescribes requirements for generators,

22. Second, Florida operates a very active hazardous waste reduction and elimination

rogram under ss. 403.7223. This program is support oriented, not compliance/enforcement oriented, and

dispodiagram of each cell or disposal area. For all facilities, this information must include cross-references to specific manifest

The recording of the fate g Criminal Enforcement In Florida, the department operates the hazardodtransporters and TSDs in ss. 403.721, Florida Statutes. With some exceptions, Florida has adopted 40 CFR 260-279 as the basis for the Florida program. Florida’s program has some unique features. First, hazardous waste landfills are specifically prohibited inFlorida by ss. 403.72pinformation developed in the course of this program is not shared with the department’s compliance and enforcement staff. Third, Florida has a large number of facilities than are Small Quantity Generators, or Conditionally ESmall Quantity Generators. A Small Quantity Generator “verification” program was d

xempt eveloped117. Many

ounties have a person whose responsibility is a non-regulatory annual inspection of all the Small Quantity

tes use the

rm “willfully” or “knowing and willfully” to characterize specific intent statutes, it is implied that the intent stahowever mens rea requirement for this statute. The statute language is*:

(

cGenerators in the county. These inspectors are familiar with the operation of these facilities in their counties and are excellent sources of information for law enforcement investigators. Enforcement provisions applicable to RCRA regulated wastes are found in ss. 403.727 Florida Statutes. These provisions use the terms “…knowingly, or by exhibiting reckless indifference or gross carelessdisregard for human health…” Considering that other criminal provisions of the Florida Statute

ndard is less than “willful” and includes culpable negligence. There is little or no case law, , to better define the

b) Any person who knowingly or by exhibiting reckless indifference or gross careless disregard for human health:

1. Transports or causes to be transported any hazardous waste, as defined in ss. 403.703, to a facility which does not have a permit when such a permit is required under ss. 403.707 or ss. 403.7

2. Dis

22118;

poses of, treats, or stores hazardous waste119: (a) At any place but a hazardous waste facility which has a current and valid permit

pursuant to ss. 403.722; (b) In knowing violation of any material condition or requirement of such permit if such

violation has a substantial likelihood of endangering human health, animal or plant life, or property; or

117 Small quantity generator notification and verification program, Ss. 403.7234, Florida Statutes 118 Violations, defenses…, Ss. 403.727 (3) (b) 1, Florida Statutes 119 Violations, defenses…, Ss. 403.727 (3) (b) 2, Florida Statutes

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(c) In knowing violation of any material condition or requirement of any applicable rule or standard if such violation has a substantial likelihood of endangering human health, animal or plant life, or property;

These firstclosely. Liclosely mir 6928 (d) (3) regarding falsifications120:

two criminal provisions mirror the federal provisions in 42 USC 6928 (d) (1) and (2) very ke the federal statute, this language enforces the heart of the RCRA program. The next section rors 42 USC

3. Makes any false statement or representation or knowingly omits material information in any hazardous waste application, label, manifest, record, report, permit, or other document required by this act;

4. Generates, stores, treats, transports, disposes of, or otherwise handles any hazardous waste and who knowingly destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed for purposes of compliance with

Finally, the manifesting requirements are enforced in Florida under the following section121:

5. Transports

this act; or

without a manifest, or causes to be transported without a manifest, any hazardous waste required by rules adopted by the department to be accompanied by a manifest

All crim

…is, upon conviction, guilty of a felony of the third degree, punishable for the first such

astes have actually been abandoned, dumped within containers, r disposed of to the ground. Ss. 403.413 is used more often because it is much easier to prove, and the

element Ss. 403.4

ds

[*Underlined words and phrases denote elements that must be proven.]

inal violations of ss. 403.727 (3) are third degree felonies122:

conviction by a fine of not more than $50,000 for each day of violation or imprisonment not to exceed 5 years, or both, and for any subsequent conviction by a fine of not more than $100,000per day of violation or imprisonment of not more than 10 years, or both…

For hazardous waste violations where the wo

of having a regulated hazardous waste is not necessary to obtaining a conviction.

13 (6) (c), Florida Statutes states:

(c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500 pounin weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as defined in ss. 403.703, is guilty of a felony of the third degree,…

Both con(1)(a) (re defined in 42 US

ncentration, or physical, chemical, or infectious characteristics, may cause, or

significantly contribute to, an increase in mortality or an increase in serious irreversible or

tainerized and illegally disposed hazardous waste meet the definition of litter under ss. 403.413 view Section 7.1, page 56). “Hazardous waste” is defined in ss. 403.703 the same way it isC 6903 (5) as123:

(21) “Hazardous waste" means solid waste, or a combination of solid wastes, which, because of itsquantity, co

incapacitating reversible illness or may pose a substantial present or potential hazard to humanhealth or the environment when improperly transported, disposed of, stored, treated, or otherwise managed.

120 Violations, defenses…, Ss. 403.727 (3) (b) 3 and 4, Florida statutes 121 Violations, defenses…, Ss. 403.727 (3) (b) 5, Florida Statutes 122 Violations, defenses…, Ss. 403.727(3) (b), Florida Statutes 123 Definitions, ss. 403.703 (21), Florida Statutes

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Ss. 403.413 (6) does not rely on the regulatory definition of hazardous waste from 40 CFR Part 261. It

lies, instead, on the broader statutory definition. To use this section, hazardous waste does not have to be reregulated hazardous wastes. The wastes can be unregulated wastes that are hazardous as demonstrated byMaterial Safety Data Sheet, toxicological studies or any other creditable documentation of toxicity or othehazard that is consistent with the statutory definition of hazardous waste.

r

us waste” does not have to be proven, there is no need to prove any of 40 CFR, art 261. This makes charges under the Florida Litter Law easier to prove than those under ss. 403.727.

etroleum oils are used is many applications in Florida ranging from vehicle crankcase oils to industrial ffort to beneficially reuse used

etroleum oils to keep waste out of the environment where they may be harmful, and to reduce the need for new Used oil roblems for several reasons:

er seeing television images of oil covered birds and mammals after catastrophic oil spill events.

• Used oils are often generated at the same times, and in the same facilities as many regulated

method

allons of used oil was reportedly collected for management during 1998. pproximately 32% was automotive oil, 19% industrial oils, and the remainder was mixed124. While

e

by which used oils are either segregated from hazardous wastes, or managed as hazardous wastes ccording to their hazardous characteristics. FAC Rule 62-710 establishes certain disposal prohibitions

rs. le 62-710 also regulates the collection, storage and handling of used oil filters for recycling or

isposal. Understandoil”125:

Since “regulated hazardoPHowever, the Florida Litter Law can only be used if the hazardous waste is “dumped” in some manner. Used oil and oil filters Pcutting and hydraulic oils of various types. Florida makes a serious ep

ly produced petroleum oils.

s are potential environmental p

• Used oils discharged to waters are harmful to marine or aquatic plant and wildlife communities. Almost everyone can rememb

Used oils discharged to soils may pollute groundwater rendering it unfit for drinking or irrigation without expensive treatment.

hazardous wastes, or other wastes of environmental concern. Used oils offer a convenientfor unscrupulous operators to “hide” more hazardous pollutants that may be disposed of inadvertently with the used oil.

In Florida, 94,624,851 gAcollecting this amount of used oil for beneficial reuse is laudable, this amount does not represent all of the used oil produced in Florida. Significant amounts of used oil are also illegally disposed each year to Florida’s environment. Of the oil reported to be collected for management in 1998, about 56.6% was reported to be recycled. Threcycling methods and amounts are found in Table 19.4.1. However, 43.5% of the used oil recovered wound up disposed as oily-wastes. Used oil in Florida is regulated under 40 CFR, Part 279 and FAC Rule 62-710. 40 CFR, Part 279 sets standards aapplicable to Florida, and creates a registration, certification and reporting system for waste oil handleFAC Rud

ing Florida used oil requirements begins in ss. 403.75, Florida Statutes by defining “used

124 Report to the Legislature: Florida’s Used Oil Recycling Program, DEP Bureau of Solid and Hazardous Waste, January 2000 125 Definitions relating to used oil, Ss. 403.75, Florida Statutes

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“Used oil" means any oil which has been refined from crude oil or synthetic oil and, as a result al purpose

ss of original properties. Ss. 403.75

) No person may collect, transport, store, recycle, use, or dispose of used oil in

(b) No person may discharge used oil into sewers, drainage systems, septic tanks, surface or

r commingle used oil with solid waste that is to be disposed of in ndfills or directly dispose of used oil in landfills in Florida unless approved by the department.

into a landfill any used oil which has not been

properly segregated or separated from other solid wastes by the generator is not guilty of a

(e) No person may mix or commingle used oil with hazardous substances that make it

(2) Used oil shall not be used for road oiling, dust control, weed abatement, or other similar uses into the environment.

Ss. 403.754 process, or The regula ry program 128:

) The fol andling activities with the Department on DEP Form 62-701.900(9):

d oil handler must keep the records and file the annual reports specified in FAC Rule 62-10. In addition to registration, persons who haul more than 500 gallons of waste oil each year (subject to

ortation management,

aintain employee training records, and meet the minimum financial assurance requirements of FAC Rule

addition to certification requirements for used oil transporters, used oil storage and recycling facilities FAC Rule 62-710.800.

qual l used oil. The FR, Part 279 is that:

of use, storage, or handling, has become contaminated and unsuitable for its origindue to the presence of physical or chemical impurities or lo

1 follows, listing some specific prohibitions concerning used oil management126:

(aany manner which endangers the public health or welfare.

ground waters, watercourses, or marine waters. (c) No person may mix ola

(d) Any person who unknowingly disposes

violation under this act.

unsuitable for recycling or beneficial use.

that have the potential to release used oil

, Florida Statutes establishes a registration and reporting program for people who transport, market used oil127.

to begins with registration

(1 lowing persons shall annually register their used oil h

(a) Used oil transporters and transfer facilities; (b) Used oil processors; (c) Used oil fuel marketers who sell used oil fuel; and (d) Used oil burners of off-specification used oil.

The registered use7some exceptions) must be a “certified waste oil transporter”. To become certified a registered transporter,and the transporter’s employees, must complete a training course in used oil transpm61-710.600 (D). Inmust have solid waste management facility permits under Besides the state requirements for the transporters, and the storage and recycling facilities, there are federal

ity standards found in 40 CFR, Part 279 that apply to the handling and marketing of the actua

core of the requirements of 40 C

126 Prohibited actions; used oil, Ss. 403.751, Florida Statutes 127 Registration of persons…, Ss. 403.754, Florida Statutes 128 Registration and notification, Florida Administrative Code Rule 62-710.500

Page 63: Environmental Crimes: - Edocs

Used O ion Thresholds il Specificat

c

imum.

hromium 10 ppm maximum.

100 ppm maximum.

otal halogens 4,000 ppm

mption

” must be handled as a hazardous waste rather than as used oil unless the used oil exhibits the char ly

” must be handled as a hazardous waste rather than as used oil unless the used oil exhibits the char ly

Arseni 5 ppm maximum. Cadmium 2 ppm max C Lead Flash point 100 deg.F minimum. Tmaximum*.

um total halo e ll be h

• Used oil that displays any of the characteristics of hazardous waste listed in 40 CFR 261 Subpart “C• Used oil that displays any of the characteristics of hazardous waste listed in 40 CFR 261 Subpart “C

acteristic of “ignitability” onacteristic of “ignitability” on

*Subject to 1000 ppm rebuttable presuof 40 CFR 279.10 (b) (1) From: 40 CFR 279.11

40 CFR 279.10 (b) (1) From: 40 CFR 279.11

must comply with 40 CFR 279, subpart “F”, including analysis of incoming oil for excessive halogen content according to a written oil analysis plan132. They must also keep record of each delivery received and its disposition133, as well as operating records134.

because it has been mixed with a hazardous waste listed only for ignitability. (ie; mineral spirits)

Used oil that does not exhibit the characteristics of hazardous waste is divided into two categories:

• aminant

ble.

ns are pres ed to be mixed with nd 4000 ppm g ns may sti

he oil as not been mixed with

of their bers

must omply with the U.S. DOT requirements in 49 CFR, Parts 171-180.

state f their activities and receive an EPA identification number. They

he largest reuse of used oil is for energy recovery. However, each t,

re hazardous wastes may only be transported to facilities that have hazardous waste permits to store and burn hazardous waste fuels. Such oils must be transported by a hazardous waste transporter,

A used oil marketer is subject to the requirements of 40 CFR Part 279, subpart “H”. A used oil marketer must notify EPA or the state of his used oil activity and receive an EPA identification number135. Marketers may send off-specification oils only

o On-specification used oil

o Off-specification used oil

The difference between “on-specification” oil and “off-specification oil” are the threshold contvalues displayed in the accompanying ta

• Used oils that contain more than 1000 ppm of total haloge

halogenated hazardous wastes. Used oil between 1000 aconsidered on-specification oil if the generator can prove that thalogenated hazardous wastes.

Transporters of used oil must notify EPA, or in Florida the department, of their used oil transportation activities just as hazardous waste transporters must notify EPA or the statehazardous waste handling activities129. EPA identification numare issued to all used oil transporters who notify. TransporterscTransporters must also analyze the oils they pick up in some manner to assure the management category into which it falls130. Transporters must keep records of all used oil collections and deliveries and retain those records for at least three years131. Used oil processors and re-refiners must also notify EPA or theo

Tof the three types of waste oils may be burned only in certain types of facilities for energy recovery. Firsoils that a

under a hazardous waste manifest. Off-specification oils must be burned in industrial furnaces or industrial boilers as identified in 40 CFR 260.10.

to oil burners who possess EPA identification numbers and who burn

used oil, 40 CFR 279.44

.55

9.57

129 Notification, 40 CFR 279.42 130 Rebuttable presumption for131 Tracking, 40 CFR 279.46 132 Analysis plan, 40 CFR 279133 Tracking, 40 CFR 279.56 134 Operating Record, 40 CFR 27135 Notification, 40 CFR 279.73

Page 64: Environmental Crimes: - Edocs

off-specification oil in an industrial furnace or industrial boiler136. Marketers must assure that on-specification oils meet the threshold requirements for on-specification used oils and retain copies of the oil analysis for at least three years137. Marketers must track both on-specification oil shipments and off-

ipments to oil burners138.

tal concern because some of them may contain metals that make them hazardous wastes, and all of them have the potential to contain harmful quantities of oil when they are gathered and stored in large

FAC Ru

sibility of the generator to make reasonable efforts to assure that such filters are not disposed of in a landfill.

lds.

Like used oil han

(4) Registration. The following persons shall register with the Department in accordance 2-710.500(2), (3), (4) and (5), F.A.C.:

;

(d)

r shall not be required to comply with the provisions of this section with respect to used oil filters

Registered used oil filter processors must keep records concerning the disposition of the filters they process and a

• Store filters in above ground, enclosed containers plainly labeled “Used Oil Filters”, in good condition, without visible leakage.

• pon de il from a storage container

specification oil sh

Used oil filters

The management of used oil filters is regulated by FAC Rule 62-710.850. Used oil filters are of environmen

quantities.

le 62-710.850 prohibition139:

No person who removes or manages used oil filters shall dispose of such filters in a landfill or commingle such filters with other solid waste for disposal in a landfill. It is the respon

This prohibition shall not apply to used oil filters generated by individual househo

dlers, FAC Rule 62-710.850 requires registration of oil filter handlers140:

with the requirements of Rule 6

(a) Used oil filter transporters;

(b) Used oil filter transfer facilities

(c) Used oil filter processors; and

End users of used oil filters, including scrap metal dealers, metal foundries and thermal processing units such as cement kilns, who accept used oil filters from a person who is not a registered used oil filter processor. An end use

that have been obtained from a registered used oil filter processor.

file n annual report each year with the department. In addition, they must:

U tecting a release of o

1. Stop the release;

136 Prohibitions, 40 CFR 279.71 137On-specification used oil fuel, 40 CFR 279.72 138 Tracking, 40 CFR 279.74 139 Management of used oil filters, Florida Administrative Code Rule 62-710.850(1) 140 Management of used oil filters, Florida Administrative Code Rule 62-710.850(4)

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4. Repair or replace any leaking used oil filter storage containers prior to returning them

1 ), et seq., primarily under ss. 403.l61(5) as a first degree misdemeanor violation of department rules, or as a violation

a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each

Ss. 403.1

chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the

tamper with, or knowingly render inaccurate any monitoring device or method required to be

Used oil discharged to the environment may be charged under ss. 403.413 (6), 403.161(3) or (4), or under to the facts of the case.

In both state and federal programs, the primary basis for regulation is an air pollution source permit

The prim pollution placed on:

eral level) lsification and tampering (state & federal)

e dings are strong candidates for lung cancer and other

tal illnesses as a result of asbestos exposure. In addition, there is a strong opportunity for asbestos

d criminal activity as EPA tries curtail the use of ozone depleting chlorofluorocarbons. The result of ozone depletion is increased

2. Contain the released oil;

3. Clean up and manage properly the released oil and any subsequent oily waste; and

to service.

Violations of FAC Rule 62-710, with one exception, are criminally enforceable under ss. 403.16 (3

of an existing permit issued to a used oil facility. To review, the language reads as follows141:

Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of

offense.

61(1)(b) & (c) states142:

To fail to obtain any permit required by this

department pursuant to its lawful authority.

To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify,

maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter.

ss. 376.302(3) as appropriate

Air resource management

limiting the emissions allowed from the source.

ary criminal enforcement emphasis in air

Asbestos management (state & federal) Illegal CFC importation (fedFaIllegal open burning (state)

Strong emphasis is placed on asbestos management because occupants of buildings containing friablasbestos, and the workers who renovate those builfacontractors to falsify worker-training credentials. Illegal CFCs imported from other countries have become a major organizetoexposure to ultraviolet radiation leading to increased rates of skin cancer.

141 Prohibitions,…, Ss. 403.161(5), Florida Statutes 142 Prohibitions,…, Sc. 403.161(1)(b) & (c), Florida Statutes

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Falsifications and tampering with pollution control equipment leads to mistrust of the self-monitoring aspects of the air resource protection program, just it does the water, solid and hazardous waste programs.

ir sources that have been tampered with may produce excess amounts of any number of air pollutants,

cts in the community.

been

Florida, violations of asbestos assessment, reporting, workplace standards, worker training, and

ugh the misdemeanor of ss. 403.161(5) is applicable. Regfollows1

• landfill. Each active waste disposal site that receives asbestos-containing waste material from a

bpart M,

• The aste generator shall make arrangements with the landfill operator before disposal the quantity of

• The landfill operator shall direct the waste transporter to the designated disposal a

estos Hazardous Emergency Response Act (AHERA) stances Control Act, Title II, 15 USC 2641]) to identify and abate asbestos hazards in schools.

administrators and custodial staff to identify asbestos hazards and abate them accordance with the 40 CFR 140-154, et seq.

Aincluding “products of incomplete combustion (PICs)” which can combine with other pollutants to cause health and safety impa Finally, open burning is a popular, but generally illegal, strategy of solid waste management as has previously discussed. Inrequirements for removal, handling and transportation are normally handled as federal Clean Air Act felonies, tho

ulated asbestos containing materials must be disposed of in a Class I municipal waste landfill as 43: Asbestos-containing waste materials may be accepted for disposal at a permitted Class I, II, or III

source covered under the National Emission Standards for Asbestos, 40 CFR Part 61, Sushall meet the requirements of 40 CFR Part 61.154, which are incorporated by reference herein.

w

of such regulated asbestos-containing waste materials, and inform the operator ofthe waste and the scheduled date the shipment will arrive at the landfill.

location. The disposal location shall be recorded in accordance with 40 CFR Part 61.154, and record of the asbestos location shall be maintained.

Schools have special requirements under the Asb[Toxic SubThis program works to teachin Ozone depleting chemicals: Florida has no state environmental criminal statutes directly applicable to illegal importation of freons. Florida regulates freons in accordance with specific portions of 40 CFR 82. Most notably, the portions that

quire certification of technicians who service automobile and similar appliance air conditioning systems. rida Statutes and neither contains criminal

rovisions, nor refers to criminal enforcement authority of another statute.

reThe Florida program is implemented under ss. 325.221-223, Flop Falsification(s) or tampering with pollution control equipment: Air pollution sources are required to have permits under the various sections of CAA in a manner essentially identical to permitting of point sources under CWA in Section 8.2. The permits issued to sourceof air pollution prescribe the amount of pollutants the source is allowed to emit, the fuel that must be used,the operat

s

ing conditions of the source, and often the maximum acceptable production throughput of the urce. In addition the permits prescribe the monitoring that must be done by the permittee, the reporting

sofrequency and format, and any specialized continuous monitors, or pollution control equipment that must be used.

143 Asbestos waste disposal, Florida Administrative Code Rule 62-701.520 (3)

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Permitting is done in accordance with a State Implementation Plan (SIP) for the CAA that addresses special air pollution control needs in order to meet minimum ambient air quality standards. Those special needsrequirements influence the nature of the permits issues for air pollution sources. Program integrity is critical to credibly protecting the air quality resources of the state. Program integrity in this context means that the department’s air quality staff must be able to trust the

or

data provided in self-onitoring reports, and through the operation of continuous monitors and specialized pollution control

ic ctiveness of Florida’s air quality management program.

nd/or equipment tampering in the air quality programs are serious environmental rime issues that may be addressed either federally or in the state criminal system depending upon the

Criminal Enforcement Florida’s environmental criminal enforcement statute applicable to the air resource management program is ss. 403.1 144

(1) It shall be a violation of this chapter, and it shall be prohibited for any person

mequipment is not deliberately falsified or disabled in some manner. Falsification of data, or disabling of specialized monitors or equipment seriously jeopardize the confidence of the program staff, and the publin the integrity and effe Therefore, falsifications acseverity of the issues.

61. The basic prohibition of ss. 403.161 is *:

:

(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

nition of “pollution” found in ss. 403.031 should be reviewed145:

“Pollution" is the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or manmade or human-induced impai

The defi

rment of air or waters or alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels

t ing

lth or l or plant life, or property…”, the statutory prohibition of ss. 403.161 is the causing of

“…pollution, …so as to harm or injure…”. In the criminal context that means providing a jury with harm or injury that f “potential” hviolations146:

Any person

which are or may be potentially harmful or injurious to human health or welfare, animal or planlife, or property or which unreasonably interfere with the enjoyment of life or property, includoutdoor recreation unless authorized by applicable law.

While “pollution” is defined in terms of “…may be potentially harmful or injurious to human heawelfare, anima

they can identify as environmental injury without having to rely on scientific arguments oarm. In this context, ss. 403.161 (3), Florida Statutes provides a felony for “willful”

who willfully commits a violation specified in paragraph (1)(a) is guilty of a d 775.083(1)(g) by a

fine of not more than $50,000 or by imprisonment for 5 years, or by both, for each offense.

[*Underlined words and phrases denote elements that must be proven.]

The monetary penalties of this section are ten times those prescribed by ss. 775.083, Florida Statutes, but the element of actual identifiable environmental harm must be met.

felony of the third degree punishable as provided in ss. 775.082(3)(d) an

Each day during any portion of which such violation occurs constitutes a separate offense.

144 Prohibitions, violations, penalty, intent, ss. 403.161 (1) (a), Florida Statutes 145 Definitions, ss 403.031 (7), Florida Statutes 146 Prohibitions, violations, penalty, intent, ss. 403.161 (3), Florida Statutes

Page 68: Environmental Crimes: - Edocs

Ss. 403.161 (1) (b) and (c) prescribe other violations of Chapter 403147*:

To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter.

oven.]

These vi

[*Underlined words and phrases denote elements that must be pr

olations are criminalized in ss. 403.161(5), Florida Statutes148*:

Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and

775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each

This is potentially the most useful Florida criminal statute for air violations. Violations of permits and rules

s in this are ten times the base penalties prescribed in ss. 775.083, Florida Statutes. However, the potential jail term is reduced to half the base penalty for first-degree misdemeanors

Finally,

guilty of

offense.

[*Underlined words and phrases denote elements that must be proven.]

can be addressed under this section.

Once again, the financial penaltie

in ss. 775.082, Florida Statutes.

ss. 403.161 contains a provision for negligently causing pollution149*:

Any person who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082(4)(b) and 775.083(1)(g) by a fine of not more than $5,000 or by 60 days in jail, or

This section requires a level of proof of harm or injury essentially equivalent to the felony charge, but for a meanor.

Sometimes, it is surprising what the term “pesticide” includes. The following are all pesticides under this program

by both, for each offense.

[*Underlined words and phrases denote elements that must be proven.]

second-degree misde

Pesticides

:

Algicides - Control algae in lakes, canals, swimming pools, water tanks, and other sites. Antifouling agents -Kill or repel organisms that attach to underwater surfaces, such as boat

bottoms.

147 Prohibitions, violations, penalty, intent, ss. 403.161 (1) (b) & (c), Florida Statutes 148 Prohibitions, violations, penalty, intent, ss. 403.161 (5), Florida Statutes 149 Prohibitions, violations, penalty, intent, ss. 403.161 (4), Florida Statutes

Page 69: Environmental Crimes: - Edocs

Antimicrobials -Kill microorganisms (such as bacteria and viruses). Attractants -Attract pests (for example, to lure an insect or rodent to a trap). (However, food is nconsidere

ot d a pesticide when used as an attractant.)

Biocides -Kill microorganisms. Disinfectants and sanitizers -Kill or inactivate disease-producing microorganisms on inanimate objects. Fungicides -Kill fungi (including blights, mildews, molds, and rusts). Fumigants -Produce gas or vapor intended to destroy pests in buildings or soil. Herbicides -Kill weeds and other plants that grow where they are not wanted. Insecticides -Kill insects and other arthropods. Miticides (also called acaricides) -Kill mites that feed on plants and animals. Microbial pesticides -Microorganisms that kill, inhibit, or out compete pests, including insects or other microorganisms. Molluscicides -Kill snails and slugs. Nematicides -Kill nematodes (microscopic, worm-like organisms that feed on plant roots). Ovicides -Kill eggs of insects and mites. Pheromones -Biochemicals used to disrupt the mating behavior of insects. Repellents -Repel pests, including insects (such as mosquitoes) and birds. Rodenticides -Control mice and other rodents. Defoliants -Cause leaves or other foliage to drop from a plant, usually to facilitate harvest. Desiccants -Promote drying of living tissues, such as unwanted plant tops. Insect growth regulators -Disrupt the molting, maturity from pupal stage to adult, or other life processes of insects. Plant growth regulators -Substances (excluding fertilizers or other plant nutrients) that alter the expected growth, flowering, or reproduction rate of plants

The Federal Insecticide, Fungicide and Rodenticide Act, 7 USC 136 Et. Seq. (FIFRA) assigns responsibility for registration, labeling, production, transportation, storage, training and application to EPA. With the exception of registration and labeling, the day-to-day operation of this program has been delegated Florida Department of Agriculture an

to the d Consumer Services (DACS). Once pesticides enter the environment,

the Department of Environmental Protection (DEP) is responsible for their environmental effects on surface

olve the use of pesticides for applications for which they are not labeled, sometimes with tragic results. On the state level the most common violations are those of illegal disposal of pesticides.

s been

ed brands of pesticides, and licensing Restricted Use Pesticide Applicators150. The Bureau of Pesticides registers, performs laboratory analyses, and conducts

h, animal

lso

and groundwaters of the state. The department is also responsible for overseeing disposal of waste pesticides and pesticide containers.

From a criminal enforcement perspective, home pest control and landscape maintenance applicators areapplicators most likely to receive criminal investigation attention at the federal level. The most common violations inv

While criminal charges for pesticide misuse or mismanagement are available in state law their use hauncommon.

Florida’s pesticide program is Chapter 487, Florida Statutes. Chapter 487 is the responsibility of the Department of Agriculture and Consumer Services (DACS) through the Bureau of Pesticides and the Bureau of Compliance Monitoring. Among other things, the Bureau of Compliance Monitoring regulates the sale, distribution, and use of 12,600 register

scientific evaluations of pesticides used in Florida to ensure that adverse effects to human healthealth, or the environment do not occur151.

Chapter 487, Florida Statutes establishes standards for registration and labeling, standards for manufacturing, distribution, sale, application, applicator certification, and worker protection in Florida. The regulatory rules are FAC Rules 5E-2 (pesticides), and 5E-9 (licensed applicators and dealers). DACS a

150 http://doacs.state.fl.us/~aes/compli.htm 151 http://doacs.state.fl.us/~aes/pesticides/

Page 70: Environmental Crimes: - Edocs

administers the structural pest control program under Chapter 482, Florida statutes. FAC Rule 5E-14 (pescontrol) is the applicable regulatory rule. FAC Rule 5E-14 establishes standards for structural fumi

t gations,

pest control applicator certification and license requirements. Pest control operator violations may be cause they may apply pesticides improperly inside homes without the occupant

knowing the application was improper. This practice has resulted in human deaths in other states.

ticide laws may occur in several ways depending on the facts of the case. Criminal penalties are not as strong under these laws as they are for violations of other environmental laws.

may be very high

Chaptersreads*:

particularly egregious be

Pesticide enforcement

Criminal enforcement of pes

Violations of both federal and state pesticide laws are misdemeanors, although federal criminal financial penalties

482 and 487, Florida Statutes provide second-degree misdemeanors for violations. Ss. 482.191

(1) It is unlawful to solicit, practice, perform, or advertise in pest control except as provided by this chapter. (2) A person who violates any provision of this chapter is guilty of a misdemeanor of the secodegree, punishable as provided in ss. 775.082 or ss. 775.083.

nd

n(3) Any perso who violates any rule of the department relative to pest control is guilty of a

misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083 Ss. 487.1

75 reads*:

(2) Any person who violates any provision of this chapter or rules adopted pursuant thereto commits a misdemeanor of the second degree and upon conviction is punishable as provided in ss.

misdemeanor of the first degree and upon conviction is punishable as provided in ss. 775.082 and 775.083.

derlined words and phrases denote elements that must be proven.]

ides enter the environment through seriously inappropriate application techniques or illegal aste disposal practices, charges under the ss. 403.413 (6), ss. 403.161(3) or ss. 376.302 should be

or more detailed examination of environmental crimes in Florida, including parallel proceedings, public cords and other considerations, please refer to “Environmental Crimes: A Guide to Environmental Crime wareness For Law Enforcement Officers and Regulatory Professionals”.

775.082 and 775.083. For a subsequent violation, such person commits a

[* Un

While violations of these two sections are second-degree misdemeanors, they contain no knowledge requirement. Where pesticwconsidered depending upon the facts of the case. Also, consider conventional criminal code statutes as applicable. FreA

Page 71: Environmental Crimes: - Edocs

APPENDIX “A”

Department of Environmental Protection Criminal Enforcement Contact Information

State Emergency Operations Center National Response Center 1-877-272-8335 19 1-(800) 424-8802

District O

ensacola, Florida 32501-5794

695-8 17

Jacksonville, Florida 32256-7590

319

Tampa, Florida 33619-8318 2

084 / sc fax 512-1 37

rlando, FL 32803-3767

x 342-2966

Fort Myers, Florida 33902-2549 (941) 332-6975 / sc 748-6975 Fax (941) 332-6969 / sc fax 748-696

m Beach]

West Palm Beach, FL 33416-5425 (561) 681-6600 / sc fax 226-6600

755

Bureau of Emerg

ency esponse

Blvd. Tallahassee, FL 32399 -3000

e ay, Suite 200B

cksonville, FL 32256-7577

ency esponse ite 232

Orlando, FL 32803-3767 ) 893-3337

onse

t. Lauderdale, FL 33335

ency esponse

e enue, Suite 364

t. Myers, FL 33901 (941) 332-6975 / sc 748-6975 (941) 332-6964

HOTLINE 1-877-2SAVE_FL

1- (800) 320-05

ffices

Northeast District [Jacksonville] 7825 Baymeadows Way, Suite 200B

Northwest District [Pensacola] 160 Government Center P(850) 595-8300 / sc 695-8300 Fax (850) 595-8417 / sc fax 4 Southwest District [Tampa] 3804 Coconut Palm Drive

904-807-3300 / sc 804-3300 x201 Fax 904-448-4319 / sc fax 880-4

(813) 744-6100 / sc 512-104 Fax (813) 744-6 0

Central Florida District [Orlando]3319 Maguire Blvd., Suite 232 O(407) 894-7555 / sc 325-2290 Fax (407) 897-2966 / sc fa

South District [Ft. Myers] (PO Box 2549) 2295 Victoria Avenue, Suite 364

9 Fax (561) 681-6

Southeast Florida District [West Pal400 N. Congress Avenue P.O. Box 15425

ency Response

Bureau of Emerg R 3900 Commonwealth

(850) 488-2974 Fax (850) 488-5957

Bureau of Emergency Respons7825 Baymeadows WJa(904) 807-3300 / sc 804-3300 Fax (904) 448-4363

Bureau of Emerg R 3319 Maguire Blvd., Su

(407Fax (407) 893-3163

Bureau of Emergency Resp3440 SE 18th Street P.O. Box 21564 F(954) 467-5970 /sc 453-5970 Fax (954) 467-5975

Bureau of Emerg R 8402 Laurel Fair Circle Tampa, FL 33610 (813) 744-6462 Fax (813) 744-6464

Bureau of Emergency Respons2295 Victoria AvF

Page 72: Environmental Crimes: - Edocs

Bureau of Emergency Response 160 Government Center Pensacola, FL 32501-5794

reau of Environme

er

SC 695-8300

SC 695-8342 757

, SC 210-0670

Bureau of Environmental Investigations 8350 Bee Ridge Road

al Investigations etro-Dade Police Department

3225

ureau of Environmental Investigations

Bureau of Environmental Investigations

s A nue FL 416

Bureau of Environmental Investigations

832 “B” Avenue ort Panama City anama City, FL 32401

) 747-5791 ax (850) 747-5793

Bureau of Environmental Investigations 5990 North Tallahassee Road Crystal River, FL 34428 (352) 563-6092 Fax (352) 563-6046

(850) 595-8300 / sc 695-8300 Fax (850) 595-8637

Bu ntal Investigations

Bureau of Environmental Investigations 160 Governmental Cent Pensacola, FL 32501 (850) 595-8300, Fax (850) 595-8324,

Bureau of Environmental Investigations 3900 Commonwealth Blvd. Tallahassee, FL 32399 (850) 488-5757, SC 278-5fax (850) 410-0670

Sarasota, FL 34241 (941) 316-1301 Fax (941) 373-7235

Bureau of EnvironmentMIntergovernmental Section 8899A, NW 18th Terrace Miami, FL 33172 (305) 468-2584 Fax (305) 468-2578

Bureau of Environmental Investigations 7825 Baymeadows Way, Suite 105AJacksonville, FL 6 (904) 807-3300 Fax (904) 448-4314

Bureau of Environmental Investigations 2955 Pluckerbaum Road Cocoa, FL 32926 (321) 633-1734 Fax (321) 635-7807

BSeminole County Sheriff’s Office 100 Bush Blvd. Sanford, FL 32773 (407) 665-6504 Fax (407) 665-6505

3804 Coconut Palm Drive Tampa, FL 33619 (813) 744-6100 Fax (813) 664-8395

Bureau of Environmental Investigations 400 North Congres ve West Palm Beach, 33 (561) 681-6608 Fax (561) 681-6739

Bureau of Environmental Investigations 101 NW 75th Street, Suite 3 Gainesville, FL 32607 (352) 333-2850 Fax (352) 333-2858

1PP(850F

Page 73: Environmental Crimes: - Edocs

APPEND

Approved Local Pollut am Contact Inf

Alachua County Environmental Protection revard County Office of Natural Resource

n Way

Fax (407) 633-2029

roward County Department of Planning and Protection nue

33301

City of Jacksonville Regulatory and Environmental

225 02

rvices

nt 8

Fax (850) 891-7184

ami Trail, Building “H”

Escambia County Neighborhood and Environmental

eet

(850) 595-3496

illsborough County Environmental Protection

ue 05

Lake County Growth Management Department

ee County Division of Natural Resource

2-0398

IX “B”

ion Control Progrormation

201 SE 2nd Avenue, Suite 201 Gainesville, FL 32601 (352) 264-6801 Fax (352) 955-2440

BManagement 2725 Judge Fran JamiesoViera, FL 32940 (407) 633-2016

BEnvironmental218 SW 1st AveFt. Lauderdale, FL(954) 519-1261 Fax (954) 769-4804

Sciences Department 117 W. Duval Street, RoomJacksonville, FL 322

City of Ocala P.O. Box 1270 Ocala, FL 34478 (352) 629-8359 Fax (352) 622-5819

City of Orlando Environmental Se5100 L.B. McLeod Road Orlando, FL 32811(407) 246-2664 Fax (407) 246-2886

City of Tallahassee Growth Management Departme300 S. Adams Street, B-2Tallahassee, FL 32301(850) 891-7001

Collier County Pollution Control 3301 E. TamiNaples, FL 34112(941) 732-2502 Fax (941) 732-2574

Services 1190 W. Leonard StrPensacola, FL 32501

HCommission 1900 9th AvenTampa, FL 336(813) 272-5960 Fax (813) 272-5157

315 W. Main Street Tavares, FL 32778-7800

LManagement P.O. Box 398Ft. Myers, FL 3390(941) 479-8129 Fax (941) 479-8108

Leon County Environmental Compliance Division 3401 W. Tharpe Street Tallahassee, FL 32303 (850) 488-9300 Fax (850) 487-7956

Manatee County Environmental Protection Department 202 6th Avenue E. Bradenton, FL 34208 (941) 742-5980 Fax (941) 742-5996

Page 74: Environmental Crimes: - Edocs

Palm Beach County Department of Environmental Resources Management

, Building 502 h, FL 33406

Fax (561) 233-2414

ue

Natural Resources

Volusia County Department of Environmental Management 123 W. Indiana Avenue Deland, FL 32720-4621 (904) 736-5927 Fax (904) 822-5727

etro-Dade Department of nvironmental Resources Management

33 Southwest 2nd Avenue iami, FL 33130

2-6955 (305) 372-6973

County Public H

epartment th Street

Gainesville, Fl. 32641

lth Department r Street

acclenny FL 32063

th Street Panama City, FL 32401

ent Avenue

tarke, FL 32091

ment ay Parkway

Merritt Island, FL 32953-4147 (321) 454-7111

tment st Sixth Avenue

) 467-4811

epartment

32424-1815 (850) 674-5645

th Department

) 474-3240 Englewood Office

itrus County Health Department 700 W. Sovereign Path ecanto, FL 34461-8071

lay County Health Department ost Office Box 578 305 Idlewild Avenue

3323 Belvedere RoadWest Palm Beac(561) 233-2400

Pinellas County Department of Environmental Management 512 S. Ft. Harrison AvenClearwater, FL 33756 (727) 464-4761 Fax (727) 464-3174

Sarasota County Department of2817 Cattlemen Road Sarasota, FL 34232 (941) 378-6155 Fax (941) 378-6067

ME

M(305) 372-6789 Pollution Hotline (305) 37Environmental Crimes

ealth Units

Baker County Hea480 West Lowde

Alachua County Health D224 Southeast 24

(352) 334-7900

Bay County Health Department 597 West Eleven

M(904) 259-6291 Bradford County Health Departm1801 N. Temple

(850) 872-4455

Brevard County Health Depart2575 N. Courten

S(904) 964-7732 Broward County Health Depar2421-A SouthweFt. Lauderdale, FL 33315-2613 (954 Charlotte County Heal514 East Grace Street Punta Gorda, FL 33950-6198 (941) 639-1181

Calhoun County Health D1507 W. Central Avenue Blountstown, FL

(941

C3L(352) 527-1288

CP1Green Cove Springs, FL 32043-0578 (904) 529-2277

Page 75: Environmental Crimes: - Edocs

Collier County Health DepartmentPost Office Box 429 (34106) 3301 Tamiami Trail EastNaples, FL 3411

, Bldg. H, Rm. 203 2

) 774-8210

t

treet 696

(305) 324-2454

rtment

6 (863) 993-460

ment Airport Road

2628 (352) 498-1360

epartment

397

ld Drive 847

00

ent

3

(352)43-3120

North 33471

ue

5 ) 674-4056

ealth Department lth Department Boulevard

5-5135

(813) 307-8008

(941

Columbia County Health Departmen249 East Franklin Street Lake City, FL 32055(904) 758-1037

DeSoto County Health Depa34 South Baldwin Avenue Arcadia, FL 3426

Dade County Health Department 1350 Northwest 14th SMiami, FL 33125-1

Dixie County Health Depart1530 S.E. 12th Street, Cross City, FL 3

Duval County Health D515 West Sixth Street Jacksonville, FL 32206-4(904) 630-3220

Escambia County Health Department 1295 West FairfiePensacola, FL 32501 (850) 595-6557

Flagler County Health Department Post Office Box 301 South Lemon Street Bunell, FL 32110-0847 (904) 437-7350

Franklin County Health Department 137 12th Street Apalachicola, FL 32320 (850) 653-2111

Gadsden County Health DepartmentP.O. Box 1000 Dr. LaSalle LeFalle Drive Quincy, Florida 32353-10(850) 875-7200

Gilchrist County Health DepartmPost Office Box 368 119 First Avenue, NortheastTrenton, FL 3269

Glades County Health Department Post Office Box 489 Building 998, Highway 27Moore Haven, FL (863) 946-0707

Gulf County Health Department 2475 Garrison Avenue Port St. Joe, FL 32456(850) 227-1276

Hamilton County Health DepartmentPost Office Box 267 209 S.E. Central AvenJasper, FL 32052 (904) 792-1414

Hardee County Health Department 115 K.D. Revell Road Wauchula, FL 33873 (863) 773-4161

Hendry County Health Department Post Office Box 70 (33975) 325 Pratt Boulevard LaBelle, FL 3393(941 Highlands County Hea7205 South GeorgeSebring, FL 33875-5847 (863) 386-6040

Hernando County H300 S. Main Street Brooksville, FL 34601 (352) 754-4067

Hillsborough County Health Department P.O. Box 5135 1105 East Kennedy BoulevardTampa, FL 3367

Holmes County Health Department Post Office Box 337 603 Scenic Circle Bonifay, FL 32425-0337 (850) 547-3691

Page 76: Environmental Crimes: - Edocs

Indian River County Health Department ackson County Health Department

et 32447-0310

nt

Street 344

ent

(904) 362-2708

rtment alth Department

6

(352) 486-5305

et

) 643-2415

epartment office location)

0

artment , East 208

(941) 748-0747

ay

1 (305) 293-7544

035-0517

rtheast 066

nt 79 (34973-1879)

Orange County Health Department Post Office Box 3187 832 West Central Boulevard

sceola County Health Department P.O. Box 450309

875 Boggy Creek Road

1900 27th Street Vero Beach, FL 32960-3383 (561) 794-7400

JPost Office Box 310 3045 Fourth StreMarianna, FL (850) 482-9862

Jefferson County Health Departme1255 W. WashingtonMonticello, FL 32(850) 342-0171

Lafayette County Health DepartmRoute 3, Box 8 Highway 27 Mayo, FL 32066

Lee County He3920 Michigan Avenue Ft. Myers, FL 3391(941) 332-9514

Lake County Health Depa16140 US Hwy 441 Eustis, FL 32726 (352)589-6424

Levy County Health Department Post Office Box 40 66 West Main Street Bronson, FL 32621

Liberty County Health Department P.O. Box 489 247 North Central StreBristol, FL 32321(850 Manatee County Health Dep410 Sixth AvenueBradenton, FL 34

Madison County Health D800 Third Street (New Madison, FL 3234(850) 973-5000

Marion County Health Department 1801 S.E. 32nd AvenuePost Office Box 2408Ocala, FL 34478 (352) 629-0137

Martin County Health Department 620 South Dixie HighwStuart, FL 34994 (561) 221-4037

Monroe County Health Department Post Office Box 6193 5100 College Road Key West, FL 3304

Nassau County Health Department Post Office Box 517 30 South 4th Street Fernandina Beach, FL 32(904) 277-7287

Okaloosa County Health Department221 Hospital Drive, NoFt. Walton Beach, FL 32548-5(850) 833-9245

Okeechobee County Health DepartmePost Office Box 181728 NW 9th Avenue Okeechobee, FL 34972 (941) 462-5760

Orlando, FL 32802-3187 (407) 623-1180

O

1Kissimmee, FL 34745-0309 (407) 343-2024

Page 77: Environmental Crimes: - Edocs

Palm Beach County Health DepartmePost Office Box 29 826 Evernia Street West Palm Beach, FL 33402 (561) 355-3120

nt

-2533

3733) L 33701-3549

(727) 824-6931

4th Floor

ment t

7-4100 (904) 326-3200

Health Department

929 ) 983-5200

th Department t Boulevard

lth Department

84

) 793-6979

nt 0

064 (904) 362-2708

31 32120)

L 32114-32997

) 947-3414

ment

L 32327 ) 926-3591

Walton County Health Department 493 North 9th Street Defuniak Springs, FL 32433-9401 (850) 892-8027

ashington County Health Department 338 South Boulevard West hipley, FL 32428-2208

) 638-6240

Pasco County Health Department 10841 Little Road New Port Richey, FL 34654(727) 869-3900

Pinellas County Health Department 500 7th Avenue South Post Office Box 13549 (3St. Petersburg, F

Polk County Health Department 1290 Golfview Avenue,Bartow, FL 33830-6740 (863) 519-7900 Santa Rosa County Post Office Box 929 Milton, FL 32572-0

Putnam County Health Depart2801 Kennedy StreePalatka, FL 3217

(850 St. Johns County Hea180 Marine Street St. Augustine, FL 320(904) 825-5054

Seminole County Heal400 West AirporSanford, FL 32773 (407) 665-3200

St. Lucie County Health Department Post Office Box 580 714 Avenue C Ft. Pierce, FL 34954 (561) 873-4924

Sumter County Health Department Post Office Box 98 North Highway 301 N. Bushnell, FL 33513(352

Suwannee County Health DepartmePost Office Drawer 603915 Nobles Ferry Road Live Oak, FL 32

Taylor County Health Department 1215 Peacock Avenue Perry, FL 32347-2117 (850) 584-5087

Union County Health Department 495 East Main Street Lake Butler, FL 32054-17(904) 496-3211

Volusia County Health Department Post Office Box 9190 (501 South Clyde Morris Boulevard Daytona Beach, F(904

Wakulla County Health Depart3093 Crawfordville Highway Crawfordville, F(850

W1C(850

Page 78: Environmental Crimes: - Edocs

Appendix “C”

tal Crime Strike F

mental Crime Hotline 1-(87 35]

Northwest District

epartment

32405 )747-4701

t

ch, FL 32413 (850) 233-5000

epartment

32405 ) 872-3126

kway, Suite G 32404

(850) 872-4545

eriff's Office

32424 ) 674-5049

Sheriff's Office

523 (850) 436-9589

lice Department

98 ) 435-1900

Sheriff's Office

328 (850) 670-8500

olice Department

32320 ) 653-9755

ff's Office

3 (850) 627-9233

eriff's Office

2457 ) 227-1115

iff's Office

(850) 547-3681

Sheriff's Office

447 ) 482-9664

ty Sheriff's Office

2344 (850) 997-6067

ffice

02 ) 922-3300

riff's Office

(850) 643-2235

kaloosa County Sheriff's Office 250 Eglin Parkway

Santa Rosa Sheriff's Department P.O. Box 7129

Florida Environmen orce(s) Member Agencies and Offices

Environ 7)-2SAVEFL [1-(877) 272-83

Bay County Sheriff's D3421 N. Hwy 77 Panama City, FL(850

Panama City Beach Police Departmen17110 Firenzo St. Panama City Bea

Panama City Police D1209 East 15th Street Panama City, FL(850

FDLE 429 South Tyndall ParPanama City, FL

Calhoun County Sh342 E. Central Ave. Blountstown, FL(850

Escambia CountyP.O. Box 18770 Pensacola, FL 32

Pensacola PoP.O. Box 1750 Pensacola, FL 325(850

Franklin County270 Highway 65 Eastpoint, FL 32

Apalachicola P1 Avenue E Apalachicola, FL(850

Gadsden County SheriP.O. Box 1709 Quincy, FL 3235

Gulf County ShP.O. Box 970 Port St. Joe, FL 3(850

Holmes County Sher211 N. Oklahoma St. Bonifay, FL 32425

Jackson CountyP.O. Box 919 Marianna, FL 32(850

Jefferson Coun171 Industrial ParkMonticello, FL 3

Leon County Sheriff's OP.O. Box 727 Tallahassee, FL 323(850

Liberty County SheP.O. Box 67 Bristol, FL 32321

O1Shalimar, FL 32579 (850) 651-7125

Milton, FL 32570 (850) 983-1100

Page 79: Environmental Crimes: - Edocs

Wakulla Sheriff's Department

32327 ) 926-0800

Walton County Sheriff's Department 72 N. 6th Street DeFuniak Springs, FL 32433 (850) 892-8186

Washington County Sheriff's Department

Northeast District

Attorney

uite 814-21 cksonville, FL 32202-2919

s n

Office Suite 400 Floor

acksonville, FL 32202

it l Health Engineering

rth cksonville, FL 32211

treet, Suite 200

501 East Bay Street Jacksonville, FL 32202

stigation Division

reen Cove Springs, FL 32043

ent of Public Utilities inal Investigation Service

acksonville, FL 32212-0058

y Circuit

52 t. Augustine, FL 32095

vironmental

treet, Suite 412 Jacksonville, FL 32202

ue Service

6800 Southpoint Parkway, Suite 500 Jacksonville, FL 32216-6221

ce le

Department

ernandina, Beach, FL 32035-0668

c Works Department

2290 State Road 200

15 Oak Street Crawfordville, FL(850

P.O. Box 626 Chipley, FL 32428 (850) 638-6111

Office of the State 4th Judicial Circuit Special Prosecution Division 421 West Church Street, SJa

U.S Army Corps of EngineerRegulatory Divisio400 West Bay Street Jacksonville, FL 32232

U.S. Coast Guard Marine Safety7820 Arlington Expressway, Jacksonville, FL 32211

Jacksonville Public Utilities Enforcement Unit

th515 North Laura Street, 6J

Duval County Public Health UnEnvironmentaEnforcement 900 University Blvd., NoJa

Office of the State Attorney 4th Judicial Circuit 10 W. Adams SJacksonville, FL 32202

Jacksonville Sheriff’s Office Marine Unit

Clay County Sheriff’s Office Criminal InveP.O. Box 548 G

Jacksonville Departm2221 Buckman Street Jacksonville, FL 32206

Naval CrimJacksonville Naval Air Station P.O. Box 58 J

Office of the State Attorne7th JudicialSt. Johns County Judicial Center 4010 Lewis Speedway, Suite 2S

Department of Regulatory and EnServices 421 West Church S

Internal Reven3101-BP

Nassau County Sheriff’s Offi50 Bobby Moore CircYulee, FL 32097

Fernandina Beach PoliceP.O. Box 668 F

Nassau County PubliCode Enforcement Division

Fernandina Beach, FL 32034

Page 80: Environmental Crimes: - Edocs

Baker County Sheriff’s Office 56 North Second Street MacClenny, FL 32063

partment ad

tlantic Beach, FL 32233

L 32266 , Suite 200B

32256 ) 448-4300

esponse 200B

) 807-3300

tal Investigations 05A

Jacksonville, FL 32256 (904) 807-3300

ffice

21 West Church Street - CC6

Police Department

acksonville Beach, FL 32250

f’s Office 4015 Lewis Speedway St. Augustine, FL 32095

lth Unit

t. Augustine, FL 32085

Unit sportation ompliance

P.O. Box 6669 - M.S. 2811 Jacksonville, FL 32236

Services

cksonville, FL 32220

nt

Jacksonville, FL 32202

gations Section 820 Arlington Expressway, Suite 110

Jacksonville, FL 32211

Office of the U.S. Attorney 200 West Forsyth Street #700 Jacksonville, FL 32202

ion ite #200

32211

Central D

y ve. Suite 201

407-648-7531

on Division

acksonville, Florida 32202

IRS-Criminal Investigation Division 850 Trafalgar Court

51

EP, Bureau of Park Police A Max Brewer Memorial Parkway

Atlantic Beach Police De850 Seminole RoA

Neptune Beach Police Department 200 Lemon Street Neptune Beach, F

DEP Northeast District Office 7825 Baymeadows WayJacksonville, FL (904

DEP Bureau of Emergency R7825 Baymeadows Way, SuiteJacksonville, FL 32256 (904

DEP Bureau of Environmen7825 Baymeadows Way, Suite 1

Jacksonville Sheriff’s OSpecial Investigations Unit

Jacksonville, FL 32202

Jacksonville Beach101 Penman Road, South J

St. Johns County Sherif St. Johns County Public Hea180 Marine Street S

Baker County Public Health55 North 3rd Street MacClenny, FL 32063

Department of TranBureau of Motor Carrier C

Department of Agriculture and ConsumerLaw Enforcement Division 8719 West Beaver StreetJa

Department of Law Enforceme711 Liberty Street

Department of Defense Defense Criminal Investi7

Federal Bureau of Investigat7820 Arlington Expressway, SuJacksonville, FL

istrict

Office of the U.S. Attorne80 N. Hughey A

EPA, Criminal Investigati325 West AdamsJ

Maitland, Florida 327407-660-5842

D1Titusville, Florida 32796 1-800-342-5367

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DEP District Office 3319 Maguire Blvd., Suite 232

Conservation

al Parkway a 32796

-800-342-5367

otor Vehicles

89 407-623-1102

rlando, Florida 32810

rosecutor uite 1000

Orlando, Florida 32801

23 rlando, Florida 32801 Cocoa, Florida 32926

iff’s Office

kway erritt Island, Florida 32953

te Attorney

2725 Judge Fran Jamieson Way Bldg. D Viera, Florida 32940

19 NW Pine Avenue Ocala, Florida 34475

Sheriff’s Office

62

Office

rlando, Florida 32839

ice

P.O. Box 1673

forcement 01 S. Rosalind Ave.

s Office 400 Simpson Road

f’s Office

Sanford, Florida 32773

s Office .O. Box 569

Deland, Florida 32720

ffice of the State Attorney

32114

Volusia County Environmental Management

South Florid District

County] n

301-5000

Orlando, Florida 32803 407-893-3337

DEP Bureau of Emergency Response 3319 Maguire Blvd., Suite 232 Orlando, Florida 32803 407-893-3337

Florida Fish And WildlifeCommission 1A Max Brewer MemoriTitusville, Florid1

Department of Highway Safety & M1020 North Orlando Ave., Suite PWinter Park, Florida 327

Department of Revenue 5420 Diplomat Circle O407-623-1347

Office of the Statewide P135 W. Central Blvd. S

Department of Insurance 400 West Robinson Street S-8O

Brevard County Sheriff’s Office 2955 Pluckebaum Road

Brevard County SherAuto Theft Unit 2575 N. Courtenay ParM

Office of the Sta19th Judicial Circuit

State Attorney’s Office5th Judicial Circuit

Indian River County4055 41st Ave. Vero Beach, Florida 329

Orange County Sheriff’s2450 West 33rd Street O

State Attorney’s Off9th Judicial Circuit

Orlando, Florida 32802

Orange County Code En2Orlando, Florida 32801

Osceola County Sheriff’

Kissimmee, Florida 34744

Seminole County Sherif100 Bush Blvd.

Volusia County Sheriff’P

O7th Judicial Circuit 251 Ridgewood Ave. Daytona Beach, Florida

123 West Indiana Avenue Deland, Florida 32720

a

Florida Sheriff's Association [Lee14750 Six Mail Cypress, Fort Myers, FL 33912 (941) 477-1054

Office of Statewide Prosecutio110 SE 6th Street Suite 1400, Fort Lauderdale, FL 33(954) 712-4950

Page 82: Environmental Crimes: - Edocs

Office of Statewide Prosecution 2075 West Fires Street, Suite 202

000

Police

esponse ite 364

3901 ) 332-6975 Ext.179

DEP District Office 295 Victoria Avenue, Suite 364 Fort Myers, FL 33901 (941) 332-6975

DEP Office of General Council 3900 Commonwealth Blvd.

Southeast District

u e

3172 ) 468-2584

evard, Suite 1014

rd Avenue

34973-1397

source

3130-1540 (305) 372-6955

mer Services s Division ite #700

tation l

d, Suite 304A 301 orida 33139

(305) 535-8735

.S. Department of Interior

34

Office of Statewide Prosecution

Fort Myers, FL 33301-5(941) 338-2440

DEP, Bureau of Park295 Victoria Avenue, Suite 364 Fort Myers, FL 33901 (941) 332-6975

DEP, Bureau of Emergency R295 Victoria Avenue, SuFort Myers, FL 3(941

Tallahassee, FL 32399 (850) 921-9655

Miami-Dade Police Department Intergovernmental Burea8899-A NW 18 TerracMiami, Florida 3(305

Broward Sheriff’s Office 2601 West Broward BoulFort Lauderdale, Florida 33312 (954) 321-4108

Martin County Sheriff’s Office800 SE Monterey Road Stuart, Florida 34994(561) 220-7000

Okeechobee Police Department 55 Southeast 3Okeechobee, Florida(863) 763-5521

Miami-Dade Fire Department Special Operations Division 9300 NW 41 Street Miami, Florida 33178 (305) 375-2337

Miami-Dade County Environmental ReManagement 33 SW 2nd Avenue Miami, Florida 3

Department of Agriculture & ConsuLaw Enforcement Division 3450 SE 18th Avenue Fort Lauderdale, Florida 33335 (800) 342-5869

EPA, Criminal Investigation909 SE 1st Avenue, SuMiami, Florida 33131 (305) 536-6701

U.S. Department of TransporOffice of Inspector Genera299 E. Broward BoulevarFort Lauderdale, Florida 33(954) 356-7893

United States Coast Guard Marine Safety Office 100 MacArthur Causeway Miami Beach, Fl

UEverglades National Park 40001 State Road 9336 Homestead, Florida 330(305) 251-4886

110 SE 6 Street, Suite 1400 Fort Lauderdale, Florida 33301 (954) 712-4950

Page 83: Environmental Crimes: - Edocs

Office of the State Attorney 11th Judicial Circuit of Florida a

ghway ida 33401

ffice of the State Attorney

16th Judicial Circuit 530 Whitehead Street

Office of the U.S. Attorney strict of Florida

99 NE 4th Street

Southwest

ation Division 00 North Tampa Street, Suite 3200

riff’s Office 10750 Ulmerton Road

treet. Suite 3200

ampa, FL 33602

cutor

Tampa, FL. 33614

ection

Drive ampa, FL 33619

tal Protection 4

lvd. rystal River, FL 34428

epartment of Environmental Protection ureau of Emergency Response

8402 Laurel Fair Circle, Suite 110 Tampa, FL 33610

Department of Environmental Protection Office of General Counsel 3900 Commonwealth Blvd. Tallahassee, FL 32399

1350 NW 12th Avenue Miami, Florida 33136 (305) 547-0100

Office of the State Attorney 15th Judicial Circuit of Florid401 North Dixie HiWest Palm Beach, Flor(561) 355-7100

O

Key West, Florida 33040 (305) 292-3400

Southern Di

Miami, Florida 33132 (305) 961-9413

District

EPA Criminal Investig4Tampa, FL 33602

Pinellas County She

Largo, FL 33778

Office of the U.S. Attorney400 North Tampa ST

Office of the Statewide Prose42111 North Lois Avenue

Department of Environmental ProtSouthwest District 3804 Coconut PalmT

Department of EnvironmenFlorida Park Police, District 10247 North Suncoast BC

DB

Page 84: Environmental Crimes: - Edocs

Appendix “D”

Florida’s Major Environmental Crime Statutes Florida

Air and Water Pollution Control Act, Section 403.161: 403.161 Prohibitions, violation, penalty, intent.—

(1) It shall be a violation of this chapter, and it shall be prohibited for any person:

(a) To cause pollution, except as otherwise provided in this chapter, so as to harm or injure

nt pursuant to its lawful authority.

is chapter.

l to report to the representative of the department, as established by department rule, within one working day of discovery of a release of

to

or any damage caused and for civil penalties as provided in ss. 403.141.

a

prisonment for 5 years, or by both, for each offense. Each day during any portion of which such violation occurs constitutes a separate offense.

ce

in ss. 775.082(4)(b) and 775.083(1)(g) by a fine of not more than $5,000 or by 60 days in jail, or by both, for each offense.

(5) graph (1)(c) is guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) nd 775.083(1)(g) by a fine of not more than $10,000 or by 6 months in jail, or by both for each ffense.

) It is the legislative intent that the civil penalties and criminal fines imposed by the court be of such amount as to ensure immediate and continued compliance with this section.

human health or welfare, animal, plant, or aquatic life or property.

(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the departme

(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under th

(d) For any person who owns or operates a facility to fai

hazardous substances from the facility if the owner or operator is required to report the releasethe United States Environmental Protection Agency in accordance with 42 U.S.C. s. 9603.

(2) Whoever commits a violation specified in subsection (1) is liable to the state f

(3) Any person who willfully commits a violation specified in paragraph (1)(a) is guilty offelony of the third degree punishable as provided in ss. 775.082(3)(d) and 775.083(1)(g) by a fine of not more than $50,000 or by im

(4) Any person who commits a violation specified in paragraph (1)(a) due to reckless indifferenor gross careless disregard is guilty of a misdemeanor of the second degree, punishable as provided

Any person who willfully commits a violation specified in paragraph (1)(b) or para

ao

(6

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Florida Litter Law, Section 403.413:

403.413 Florida Litter Law.—

(1) SHORT TITLE.—This section may be cited as the “Florida Litter Law."

(2) DEFINITIONS.—As used in this section:

(a) “Litter" means any garbage; rubbish; trash; refuse; can; bottle; box; container; paper; toproduct; tire; appliance; mechanical equipment or part; building or construction material; tomachinery; wood; motor veh

bacco ol;

icle or motor vehicle part; vessel; aircraft; farm machinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution

ining,

ervation Commission. In addition, and solely for the purposes of this section, “law enforcement officer"

ment designated by the department head as a litter enforcement officer.

not any other device used primarily as safety equipment.

ing business for a commercial purpose.

(g) “Dump" means to dump, throw, discard, place, deposit, or dispose of.

sportation on water.

unicipality shall determine the training and qualifications of any employee of the county or municipality or any employee of the

by law or permit, it is unlawful for any person to dump litter in any manner or amount:

ainers or areas lawfully provided

control facility; or substance in any form resulting from domestic, industrial, commercial, magricultural, or governmental operations.

(b) “Person" means any individual, firm, sole proprietorship, partnership, corporation, or unincorporated association.

(c) “Law enforcement officer" means any officer of the Florida Highway Patrol, a county sheriff's department, a municipal law enforcement department, a law enforcement department of any other political subdivision, the department, or the Fish and Wildlife Cons

means any employee of a county or municipal park or recreation depart

(d) “Aircraft" means a motor vehicle or other vehicle that is used or designed to fly but does include a parachute or

(e) “Commercial purpose" means for the purpose of economic gain.

(f) “Commercial vehicle" means a vehicle that is owned or used by a business, corporation, association, partnership, or sole proprietorship or any other entity conduct

(h) “Motor vehicle" means an automobile, motorcycle, truck, trailer, semitrailer, truck tractor, orsemitrailer combination or any other vehicle that is powered by a motor.

(i) “Vessel" means a boat, barge, or airboat or any other vehicle used for tran

(3) RESPONSIBILITY OF LOCAL GOVERNING BODY OF A COUNTY OR MUNICIPALITY.—The local governing body of a county or a m

county or municipal park or recreation department designated to enforce the provisions of this section if the designated employee is not a regular law enforcement officer.

(4) DUMPING LITTER PROHIBITED.—Unless otherwise authorized

(a) In or on any public highway, road, street, alley, or thoroughfare, including any portion of the right-of-way thereof, or any other public lands, except in cont

Page 86: Environmental Crimes: - Edocs

therefor. When any litter is thrown or discarded from a motor vehicle, the operator or owner of the motor vehicle, or both, shall be deemed in violation of this section;

(b) In or on any freshwater lake, river, canal, or stream or tidal or coastal water of the state,

(c) In or on any private property, unless prior consent of the owner has been given and unless or be in violation of any other state or local law, rule, or

regulation.

law or

guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083. In addition, the court shall require the violator to pick

her,

ich shall record a penalty of three points on the violator's driver's license pursuant to the point system established by ss. 322.27.

(c) Any person who dumps litter in violation of subsection (4) in an amount exceeding 500

d in ss. 403.703, is guilty of a felony of the third degree, punishable as provided in ss. 775.082 or ss. 775.083. In addition, the court may order the

1. Remove or render harmless the litter that he or she dumped in violation of this section;

2. Repair or restore property damaged by, or pay damages for any damage arising out of, his or

iolation of this section or to the restoration of an area polluted by litter dumped in violation of this section.

r that

including canals. When any litter is thrown or discarded from a boat, the operator or owner of the boat, or both, shall be deemed in violation of this section; or

such litter will not cause a public nuisance

(5) DUMPING RAW HUMAN WASTE PROHIBITED.—Unless otherwise authorized by permit, it is unlawful for any person to dump raw human waste from any train, aircraft, motor vehicle, or vessel upon the public or private lands or waters of the state.

(6) PENALTIES; ENFORCEMENT.—

(a) Any person who dumps litter in violation of subsection (4) in an amount not exceeding 15 pounds in weight or 27 cubic feet in volume and not for commercial purposes is guilty of a noncriminal infraction, punishable by a civil penalty of $50. In addition, the court may require the violator to pick up litter or perform other labor commensurate with the offense committed.

(b) Any person who dumps litter in violation of subsection (4) in an amount exceeding 15 poundsin weight or 27 cubic feet in volume, but not exceeding 500 pounds in weight or 100 cubic feet in volume and not for commercial purposes is

up litter or perform other community service commensurate with the offense committed. Furtif the violation involves the use of a motor vehicle, upon a finding of guilt, whether or not adjudication is withheld or whether imposition of sentence is withheld, deferred, or suspended, the court shall forward a record of the finding to the Department of Highway Safety and Motor Vehicles, wh

pounds in weight or 100 cubic feet in volume or in any quantity for commercial purposes, or dumps litter which is a hazardous waste as define

violator to:

her dumping litter in violation of this section; or

3. Perform public service relating to the removal of litter dumped in v

(d) A court may enjoin a violation of this section.

(e) A motor vehicle, vessel, aircraft, container, crane, winch, or machine used to dump litteexceeds 500 pounds in weight or 100 cubic feet in volume is declared contraband and is subject to forfeiture in the same manner as provided in ss. 932.703 and 932.704.

Page 87: Environmental Crimes: - Edocs

(f) If a person sustains damages arising out of a violation of this section that is punishable as afelony, a court, in a civil action for such damages, shall order the pe

rson to pay the injured party

threefold the actual damages or $200, whichever amount is greater. In addition, the court shall t

m subsequent civil action under this paragraph which he or she would be

estopped from asserting if such judgment were rendered in the civil action unless the criminal

(h) In the criminal trial of a person charged with violating this section, the state does not have the

human waste or that litter or raw human waste dumped on private property causes a public

o enforce the provisions of this section.

).

signated by the governing body of the county or the municipality to enforce

the provisions of this section. Designation of such employees shall not provide the employees with

section does not limit the authority dinances relating to litter or solid

waste management.

Florida Solid and Hazardous Waste Act, Section 403.727:

order the person to pay the injured party's court costs and attorney's fees. A final judgmenrendered in a criminal proceeding against a defendant under this section estops the defendant froasserting any issue in a

judgment was based upon a plea of no contest or nolo contendere.

(g) For the purposes of this section, if a person dumps litter or raw human waste from a commercial vehicle, that person is presumed to have dumped the litter or raw human waste for commercial purposes.

burden of proving that the person did not have the right or authority to dump the litter or raw

nuisance. The defendant has the burden of proving that he or she had authority to dump the litteror raw human waste and that the litter or raw human waste dumped does not cause a public nuisance.

(i) It shall be the duty of all law enforcement officers t

(j) Any person who violates the provisions of subsection (5) is guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083; provided, however, that any person who dumps more than 500 pounds or more than 100 cubic feet of raw human waste, or who dumps any quantity of such waste for commercial purposes, is guilty of a felony of the third degree, punishable as provided in paragraph (c

(7) ENFORCEMENT BY CERTAIN COUNTY OR MUNICIPAL EMPLOYEES.—Employees of counties or municipalities whose duty it is to ensure code compliance or to enforce codes andordinances may be de

the authority to bear arms or to make arrests.

(8) ENFORCEMENT OF OTHER REGULATIONS.—Thisof any state or local agency to enforce other laws, rules, or or

403.727 Violations; defenses, penalties, and remedies.—

(1) It is unlawful for any hazardous waste generator, transporter, or facility owner or operator to:

(a) Fail to comply with the provisions of this act or departmental rules or orders;

(b) Operate without a valid permit;

rd to occur or continue;

(c) Fail to comply with a permit;

(d) Cause, authorize, create, suffer, or allow an imminent haza

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(e) Knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to the

(f) Fail to notify the department pursuant to ss. 403.72(2); or

(g) Refuse lawful inspection.

for each day of continued violation, except as otherwise provided herein. The department may revoke any permit issued to the violator. In any action by

resumption of improper disposal shall be created if the generator was notified pursuant to ss. 403.7234; the generator shall then have the burden of proving that the

al

(b) Any person who knowingly or by exhibiting reckless indifference or gross careless disregard

does not have a permit when such a permit is required under ss. 403.707 or ss. 403.722;

a. At any place but a hazardous waste facility which has a current and valid permit pursuant to

on of any material condition or requirement of such permit if such violation has a substantial likelihood of endangering human health, animal or plant life, or

nowing violation of any material condition or requirement of any applicable rule or standard if such violation has a substantial likelihood of endangering human health, animal or

us waste application, label, manifest, record, report, permit, or other document required by this act;

ous waste and who knowingly destroys, alters, conceals, or fails to file any record, application, manifest,

provisions of this act;

(2) In addition to the “imminent hazard" provision, ss. 403.121 and 403.131 are available to the department to abate violations of this act. 1

(3) Violations of the provisions of this act are punishable as follows:

(a) Any person who violates the provisions of this act, the rules or orders of the department, or the conditions of a permit is liable to the state for any damages specified in ss. 403.141 and for a civil penalty of not more than $50,000

the department against a small hazardous waste generator for the improper disposal of hazardous wastes, a rebuttable p

disposal was proper. If the generator was not so notified, the burden of proving improper disposshall be placed upon the department.

for human health:

1. Transports or causes to be transported any hazardous waste, as defined in ss. 403.703, to a facility which

2. Disposes of, treats, or stores hazardous waste:

ss. 403.722;

b. In knowing violati

property; or

c. In k

plant life, or property;

3. Makes any false statement or representation or knowingly omits material information in any hazardo

4. Generates, stores, treats, transports, disposes of, or otherwise handles any hazard

report, or other document required to be maintained or filed for purposes of compliance with this act; or

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5. Transports without a manifest, or causes to be transported without a manifest, any hazardous waste required by rules adopted by the department to be accompanied by a manifest

e third degree, punishable for the first such conviction by a fine of not more than $50,000 for each day of violation or imprisonment not to exceed 5

sed of;

d

(d) Any person who accepts or has accepted any hazardous substances for transport to disposal or

or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources, including the reasonable

ch injury, destruction, or loss resulting from the release or threatened release of a hazardous substance as defined in the Comprehensive Environmental Response,

ollowing defenses are available to a person alleged to be in violation of this act, who shall plead and prove that the alleged violation was solely the result of any of the following or

(a) An act of war.

e is l

(c) An act of God, which means only an unforeseeable act exclusively occasioned by the violence

ird party other than an employee or agent of the defendant or other than one whose act or omission occurs in connection with a contractual relationship existing,

fendant establishes by a preponderance of the evidence that:

nto

is, upon conviction, guilty of a felony of th

years, or both, and for any subsequent conviction by a fine of not more than $100,000 per day ofviolation or imprisonment of not more than 10 years, or both.

(4) In addition to any other liability under this chapter, and subject only to the defenses set forth in subsections (5), (6), and (7):

(a) The owner and operator of a facility;

(b) Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance was dispo

(c) Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owneor possessed by such person or by any other party or entity at any facility owned or operated by another party or entity and containing such hazardous substances; and

treatment facilities or sites selected by such person,

is liable for all costs of removal

costs of assessing su

Compensation, and Liability Act of 1980, Pub. L. No. 96-510.

(5) The f

combination of the following:

(b) An act of government, either state, federal, or local, unless the person claiming the defensa governmental body, in which case this defense is available only by acts of other governmentabodies.

of nature without the interference of any human agency.

(d) An act or omission of a th

directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the de

1. The defendant exercised due care with respect to the hazardous waste concerned, taking iconsideration the characteristics of such biomedical or hazardous waste, in light of all relevant facts and circumstances; and

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2. The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.

(6) A generator or transporter of hazardous wastes who has complied with this act and with the applicable rules adopted under this act and who has contracted for the disposal of hazardous

ty for processing facility.

(7) A generator of hazardous waste who has complied with this act and with the applicable rules a licensed

hazardous waste facility is relieved of liability to the extent that such liability is covered by the insurance or bond of the transporter obtained pursuant to this act.

(8) A party liable for a violation of this section shall have a right to contribution from other

Manage

wastes with a licensed hazardous waste disposal or processing facility is relieved from liabilithose wastes upon receipt of a certificate of disposal from the disposal or

under this act and who has contracted for the transportation of hazardous waste to

parties identified in subsection (4) as liable for the pollution conditions.

ment and Storage of Surface Waters [Wetlands Protection], Section 373.430:

of this part, and it shall be prohibited for any person:

thereto, or to violate or fail to comply with any rule, regulation, order, or permit adopted or issued

,

der this part.

mits a violation specified in paragraph (1)(a) is guilty of a felony of the third degree, punishable as provided in ss. 775.082(3)(d) and 775.083(1)(g), by a fine

rson who commits a violation specified in paragraph (1)(a) due to reckless indifference or gross careless disregard is guilty of a misdemeanor of the second degree, punishable as

s in

373.430 Prohibitions, violation, penalty, intent.—

(1) It shall be a violation

(a) To cause pollution, as defined in ss. 403.031(7), except as otherwise provided in this part, soas to harm or injure human health or welfare, animal, plant, or aquatic life or property.

(b) To fail to obtain any permit required by this part or by rule or regulation adopted pursuant

by a water management district, the department, or local government pursuant to their lawful authority under this part.

(c) To knowingly make any false statement, representation, or certification in any applicationrecord, report, plan, or other document filed or required to be maintained under this part, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this part or by any permit, rule, regulation, or order issued un

(2) Whoever commits a violation specified in subsection (1) is liable for any damage caused and for civil penalties as provided in ss. 373.129.

(3) Any person who willfully com

of not more than $50,000 or by imprisonment for 5 years, or by both, for each offense. Each dayduring any portion of which such violation occurs constitutes a separate offense.

(4) Any pe

provided in ss. 775.082(4)(b) and 775.083(1)(g), by a fine of not more than $5,000 or 60 dayjail, or by both, for each offense.

(5) Any person who willfully commits a violation specified in paragraph (1)(b) or paragraph (1)(c) is guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082(4)(a)

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and 775.083(1)(g), by a fine of not more than $10,000 or by 6 months in jail, or by both, for eacoffense.

(6) It is the intent of the Legislature that the civil penalties imposed by the court be of such amount as to ensure immediate and continued compliance with this section.

(7) All moneys recovered under the provisions of this section shall be allocated to the use of the water management district, the department, or the local government, whichever undertook and maintained the enforcement action. All monetary penalties and damages recovered by the department or the state under the provisions of this section shall be deposited in the Ecosystem Management and Restoration

h

Trust Fund. All monetary penalties and damages recovered pursuant to this section by a water management district shall be deposited in the Water

clusively within the territory of the water management district which deposits the money into the fund. Any such

after the expiration of such fund shall be deposited in the Ecosystem Management and Restoration Trust Fund and used exclusively within the territory

etary penalties and damages recovered pursuant to this subsection by a local government to which authority has

Florida Pollutant Discharge Prevention and Removal Act, Section 376.302:

Management Lands Trust Fund established under ss. 373.59 and used ex

monetary penalties and damages recovered

of the water management district which deposits the money into the fund. All mon

been delegated pursuant to ss. 373.103(8) shall be used to enhance surface water improvement or pollution control activities.

(1) It shall be a violation of this chapter and it shall be prohibited for any reason:

(b) To fail to obtain any permit or registration required by this chapter or by rule, or to violate or

o

section

(3) Any person who willfully commits a violation specified in paragraph (1)(a) or paragraph (1)(b)

ar ch violation occurs

constitutes a separate offense.

(4) erson who commits a violation specified in paragraph (1)(c) shall be guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g), by

h offense.

376.302 Prohibited acts; penalties.—

(a) To discharge pollutants or hazardous substances into or upon the surface or ground waters of the state or lands, which discharge violates any departmental “standard" as defined in ss. 403.803(13).

fail to comply with any statute, rule, order, permit, registration, or certification adopted or issued by the department pursuant to its lawful authority.

(c) To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter, or tfalsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, registration, rule, or order issued under this chapter.

(2) Except as provided in ss. 376.311, any person who commits a violation specified in sub(1) is liable to the state for any damage caused and for civil penalties as provided in ss. 403.141.

shall be guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g), by a fine of not less than $2,500 or more than $25,000, or punishable by 1 yein jail, or by both for each offense. Each day during any portion of which su

Any p

a fine of not more than $10,000, or by 6 months in jail, or by both for eac

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(5) Any person who commits fraud in representing their qualifications for reimbursement or in submitting a reimbursement request pursuant to ss. 376.3071(12) commits a felony of the third

, ss. 775.083, or ss. 775.084.

amount as to ensure immediate and continued compliance with this act.

Nuisanc

degree, punishable as provided in ss. 775.082

(7) It is the legislative intent that the civil penalties and criminal fines imposed by the court be ofsuch

e Injurious to Health, Chapter 386:

386.041 Nuisances injurious to health.—

(1) The following conditions existing, permitted, maintained, kept, or caused by any individual, all constitute prima facie

evidence of maintaining a nuisance injurious to health:

(a) Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous

(e) The creation, maintenance, or causing of any condition capable of breeding flies, mosquitoes, irectly or indirectly to humans.

rtment of Health, its agents and deputies, or local health authorities are authorized to investigate any condition or alleged nuisance in any city, town, or place within the state, and if such condition is determined to constitute a sanitary nuisance, they may take such action to abate the said nuisance condition in accordance with the provisions of this chapter.

386.051 Nuisances injurious to health, penalty.—

Any person found guilty of creating, keeping, or maintaining a nuisance injurious to health shall be guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083.

municipal organization, or corporation, governmental or private, sh

waste materials from manufacturing processes harmful to human or animal life and air pollutants, gases, and noisome odors which are harmful to human or animal life.

(b) Improperly built or maintained septic tanks, water closets, or privies.

(c) The keeping of diseased animals dangerous to human health.

(d) Unclean or filthy places where animals are slaughtered.

or other arthropods capable of transmitting diseases, d

(f) Any other condition determined to be a sanitary nuisance as defined in ss. 386.01.

The Depa

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Appendix “E”

C ay Be Applicable In Environmental Crimes Cases

These arThey are

onventional Criminal Statutes That M

e the sections of the applicable statutes that may be most applicable to environmental crime cases. not the complete statute, but are designed to provide sufficient information to serve as a field r the officer. Other portions of these statutes, as well as other statutes may also be applicable.

e, Assessory, Attempts, Solicitati

guide fo

Principl on, Conspiracy, Chapter 777:

, t at

st, trial or punishment, is an accessory after the fact.

committed the offense of child abuse, neglect of a child, aggravated child abuse, aggravated

punishment, is an accessory after the fact unless the court finds that the person is a victim of domestic violence.

is

(b) If the felony offense committed is a life felony or a felony of the first degree, the offense of ss.

(c) If the felony offense committed is a felony of the second degree or a felony of the third

acce775.

(d) If the felony offense committed is a felony of the third degree ranked in level 1 or level 2 cessory after the fact is a misdemeanor of the

first degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

921

777.011 Principal in first degree.—

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be chargedconvicted, and punished as such, whether he or she is or is not actually or constructively presenthe commission of such offense.

777.03 Accessory after the fact.—

(1) (a) Any person not standing in the relation of husband or wife, parent or grandparent, child orgrandchild, brother or sister, by consanguinity or affinity to the offender, who maintains or assiststhe principal or accessory before the fact, or gives the offender any other aid, knowing that the offender had committed a felony or been accessory thereto before the fact, with intent that the offender avoids or escapes detection, arre

(b) Any person, regardless of the relation to the offender, who maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that the offender had

manslaughter of a child under 18 years of age, or murder of a child under 18 years of age, or had been accessory thereto before the fact, with the intent that the offender avoids or escapes detection, arrest, trial, or

(2) (a) If the felony offense committed is a capital felony, the offense of accessory after the fact a felony of the first degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

accessory after the fact is a felony of the second degree, punishable as provided in ss. 775.082, 775.083, or ss. 775.084.

degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under ss. 921.0022 or ss. 921.0023, the offense of ssory after the fact is a felony of the third degree, punishable as provided in ss. 775.082, ss. 083, or ss. 775.084.

under ss. 921.0022 or ss. 921.0023, the offense of ac

(2) Except as otherwise provided in ss. 921.0022, for purposes of sentencing under chapterand determining incentive gain-time eligibility under chapter 944, the offense of accessory

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after the fact is ranked two levels below the ranking under ss. 921.0022 or ss. 921.0023 of tfelony offense committed.

he

prevented in the execution thereof, commits the offense of criminal attempt, ranked for purposes

n an offense prohibited by law.

rsons to sentencing

as provided in subsection (4).

riminal conspiracy is ranked for purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944

licited,

hable as provided in ss. 775.082 or ss. 775.083.

al r criminal conspiracy is a felony of the first degree, punishable as

provided in ss. 775.082, ss. 775.083, or ss. 775.084.

(c) Except as otherwise provided in ss. 893.135(5), if the offense attempted, solicited, or gree, the offense of criminal attempt, criminal

solicitation, or criminal conspiracy is a felony of the second degree, punishable as provided in ss.

(d) Except as otherwise provided in ss. 828.125(2) or ss. 849.25(4), if the offense attempted,

1. Felony of the second degree;

ee ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under ss. 921.0022 or ss. 921.0023,

f the third

(e) Except as otherwise provided in ss. 849.25(4) or paragraph (d), if the offense attempted, solicited, or conspired to is a felony of the third degree, the offense of criminal attempt, criminal

777.04 Attempts, solicitation, and conspiracy.—

(1) A person who attempts to commit an offense prohibited by law and in such attempt does anyact toward the commission of such offense, but fails in the perpetration or is intercepted or

of sentencing as provided in subsection (4). Criminal attempt includes the act of an adult who, with intent to commit an offense prohibited by law, allures, seduces, coaxes, or induces a child under the age of 12 to engage i

(2) A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).

(3) A person who agrees, conspires, combines, or confederates with another person or pecommit any offense commits the offense of criminal conspiracy, ranked for purposes of

(4) (a) Except as otherwise provided in ss. 828.125(2), 849.25(4), 893.135(5), and 921.0022, the offense of criminal attempt, criminal solicitation, or c

one level below the ranking under ss. 921.0022 or ss. 921.0023 of the offense attempted, soor conspired to. If the criminal attempt, criminal solicitation, or criminal conspiracy is of an offense ranked in level 1 or level 2 under ss. 921.0022 or ss. 921.0023, such offense is a misdemeanor of the first degree, punis

(b) If the offense attempted, solicited, or conspired to is a capital felony, the offense of criminattempt, criminal solicitation, o

conspired to is a life felony or a felony of the first de

775.082, ss. 775.083, or ss. 775.084.

solicited, or conspired to is a:

2. Burglary that is a felony of the third degree; or

3. Felony of the third degr

the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony odegree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

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solicitation, or criminal conspiracy is a misdemeanor of the first degree, punishable as providedss. 775.082 or ss. 775.083.

in

(f) If the offense attempted, solicited, or conspired to is a misdemeanor of the first or second

misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083.

solicitation, or criminal conspiracy that, under circumstances manifesting a complete and voluntary renunciation of his or her criminal

(a) Abandoned his or her attempt to commit the offense or otherwise prevented its commission;

(b) After soliciting another person to commit an offense, persuaded such other person not to do

Criminal Mischief, Chapter 806:

degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a

(5) It is a defense to a charge of criminal attempt, criminal

purpose, the defendant:

so or otherwise prevented commission of the offense; or

(c) After conspiring with one or more persons to commit an offense, persuaded such persons notto do so or otherwise prevented commission of the offense.

806.13 Criminal mischief; penalties; penalty for minor.—

hief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including,

(b)

2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor

operation or public communication, transportation, supply of water, gas or power, or other public

olating this subsection, the offense under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as a

.

.

out the consent of the owner thereof, willfully destroys or substantially damages any public telephone, or telephone cables, wires, fixtures, antennas, amplifiers, or any

phone

(1) (a) A person commits the offense of criminal misc

but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

1. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083.

of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business

service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

4. If the person has one or more previous convictions for vi

felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084

(2) Any person who willfully and maliciously defaces, injures, or damages by any means any church, synagogue, mosque, or other place of worship, or any religious article contained therein, is guilty of a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss775.084, if the damage to the property is greater than $200.

(3) Whoever, with

other apparatus, equipment, or appliances, which destruction or damage renders a public teleinoperative or which opens the body of a public telephone, is guilty of a felony of the third degree,

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punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084; provided, however, that a conspicuous notice of the provisions of this subsection and the penalties provided is posted on or near the destroyed or damaged instrument and visible to the public at the time of the commission

defaces, injures, or damages by any means a sexually violent predator detention or commitment facility, as defined in part V of chapter 394, or

in property is greater than $200.

of the offense under this section.

(6) In addition to any other penalty provided by law, if a minor is found to have committed a

(a) The minor is eligible by reason of age for a driver's license or driving privilege, the court shall

ivilege is under suspension or revocation for any reason, the court shall direct the Department of Highway Safety and Motor Vehicles to extend the

er 1 uce the period of revocation, suspension, or withholding by

performing community service at the rate of 1 day for each hour of community service performed.

drivthe periservgraf

(8)

ated to graffiti, such municipalities and counties are not preempted by state law from establishing

provides discretionary penalties. Such higher and mandatory penalties include fines that do nd

d ordinance, a court acting under chapter 985 may not provide a disposition of the case which is less severe than any mandatory penalty prescribed by municipal or county ordinance for such violation.

of the offense.

(4) Any person who willfully and maliciously

any property contained therein, is guilty of a felony of the third degree, punishable as providedss. 775.082, ss. 775.083, or ss. 775.084, if the damage to

(5) (a) The amounts of value of damage to property owned by separate persons, if the propertywas damaged during one scheme or course or conduct, may be aggregated in determining the grade

(b) Any person who violates this section may, in addition to any other criminal penalty, be required to pay for the damages caused by such offense.

delinquent act under this section for placing graffiti on any public property or private property, and:

direct the Department of Highway Safety and Motor Vehicles to revoke or withhold issuance of the minor's driver's license or driving privilege for not more than 1 year.

(b) The minor's driver's license or driving pr

period of suspension or revocation by an additional period of not more than 1 year.

(c) The minor is ineligible by reason of age for a driver's license or driving privilege, the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of the minor's driver's license or driving privilege for not more than 1 year after the date on which he orshe would otherwise have become eligible.

(7) A minor whose driver's license or driving privilege is revoked, suspended, or withheld undsubsection (5) may elect to red

In addition, if the court determines that due to a family hardship, the minor's driver's license or ing privilege is necessary for employment or medical purposes of the minor or a member of minor's family, the court shall order the minor to perform community service and reduce the od of revocation, suspension, or withholding at the rate of 1 day for each hour of community ice performed. As used in this subsection, the term “community service" means cleaning fiti from public property.

Because of the difficulty of confronting the blight of graffiti, it is the intent of the Legislaturethat municipalities and counties not be preempted by state law from establishing ordinances that prohibit the marking of graffiti or other graffiti-related offenses. Furthermore, as rel

higher penalties than those provided by state law and mandatory penalties when state law

not exceed the amount specified in ss. 125.69 and 162.21, community service, restitution, aforfeiture. Upon a finding that a juvenile has violated a graffiti-relate

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806.14 Art works in public buildings; willful damage; unauthorized removal; penalties.—

(1) Whoever willfully destroys, mutilates, defaces, injures, or, without authority, removes any work of art displayed in a public building is guilty of a criminal offense.

r of the second degree,

punishable as provided in ss. 775.082 or ss. 775.083.

(b) If the dathe replacem of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

(b) If the damage to the work of art is such that the cost of restoration, in labor and if the replacement value, is $1,000 or more, the offense is a felony of the

third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

Burglar

(2) (a) If the damage to the work of art is such that the cost of restoration, in labor and supplies, oif the replacement value, is $200 or less, the offense is a misdemeanor

mage to the work of art is such that the cost of restoration, in labor and supplies, or if ent value, is greater than $200 but less than $1,000, the offense is a misdemeanor

supplies, or

y and Trespass, Chapter 810:

810.011 Definitions.—

As used in this chapter: (1) “Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. However, during the timof a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposesof ss. 810.02 and 810.08 only, the term means a building of any kind or such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof. (2) “Dwelling" means building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term includes such portions oremnants thereof as exist at the original site, regardless of absence of a wall or roof. (3) “Conveyance" means any motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car; and

e

a

r

“to enter a conveyance" includes taking apart any portion of the conveyance. However, during the time of a state of emergency declared by executive order or proclamation of

8 only, the term “conveyance" means a motor vehicle, ship, vessel, railroad vehicle or car, trailer, aircraft, or sleeping car or such portions

land" is that land upon which signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in

ing nd

the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.0

thereof as exist.

(4) An act is committed “in the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

(5) (a) “Posted

letters of not less than 2 inches in height, the words “no trespassing" and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundaryline of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line.

(b) It shall not be necessary to give notice by posting on any enclosed land or place not exceed5 acres in area on which there is a dwelling house in order to obtain the benefits of ss. 810.09 a

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810.12 pertaining to trespass on enclosed lands. (6) “Cultivated land" is that land which has beencleared of its natural vegetation and is presen

tly planted with a crop, orchard, grove, pasture, or

trees or is fallow land as part of a crop rotation. (7) “Fenced land" is that land which has been

steelpurpany

(9)

tion r farm

l, mining, agricultural, or governmental operations. (10) “Dump" means to dump, throw, discard, place, deposit, or dispose of any litter. (11) “Commercial horticulture

tural vegetation and is planted in commercially cultivated horticulture products that are planted, grown, or harvested. The term

2000)

r .

e that the holding in Delgado v. State, Slip Opinion No. SC88638 be nullified. It is further the intent of the Legislature that ss. 810.02(1)(a) be construed in

tate, 440 So. 2d 1257 (Fla. 1983); and Ray v. State, 522 So. 2d 963 (Fla. 3rd DCA, 1988). This subsection shall operate

ry 1, 2000.

urglary.—

eans entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the

(b) For offenses committed after July 1, 2001, “burglary" means:

dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to

2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:

enclosed by a fence of substantial construction, whether with rails, logs, post and railing, iron, , barbed wire, other wire, or other material, which stands at least 3 feet in height. For the ose of this chapter, it shall not be necessary to fence any boundary or part of a boundary of

land which is formed by water.

Where lands are posted, cultivated, or fenced as described herein, then said lands, for the purpose of this chapter, shall be considered as enclosed and posted. (9) “Litter" means any garbage, rubbish, trash, refuse, debris, can, bottle, box, container, paper, tobacco product, tire,domestic or commercial appliance, mechanical equipment or part, building or construcmaterial, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, omachinery or equipment; sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility; or substance in any form resulting from domestic, industrial, commercia

property" means any property that is cleared of its na

also includes property that is used for the commercial sale, use, or distribution of horticulture products.

810.015 Legislative findings and intent; burglary.—

(1) The Legislature finds that the case of Delgado v. State, Slip Opinion No. SC88638 (Fla. was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary fothe licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously

(2) It is the intent of the Legislatur

conformity with Raleigh v. State, 705 So. 2d 1324 (Fla. 1997); Jimenez v. State, 703 So. 2d 437 (Fla. 1997); Robertson v. State, 699 So. 2d 1343 (Fla. 1997); Routly v. S

retroactively to Februa

(3) It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence.

810.02 B

(1) (a) For offenses committed on or before July 1, 2001, “burglary" m

premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

1. Entering a

enter; or

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a. Surreptitiously, with the intent to commit an offense therein;

b. After permission to remain therein has been withdrawn, with the intent to commit an offense

hable by imprisonment for a term of years not exceeding life imprisonment or as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if, in the

(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a

1. Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in

2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in

3, f committing the offense, the offender does not make an assault or

battery and is not and does not become armed with a dangerous weapon or explosive, and the

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or

(c) Structure, and there is another person in the structure at the time the offender enters or

(d) Conveyance, and there is another person in the conveyance at the time the offender enters or

, or ommitting the offense, the offender does not make an assault or

battery and is not and does not become armed with a dangerous weapon or explosive, and the

(a) Structure, and there is not another person in the structure at the time the offender enters or

(b) Conveyance, and there is not another person in the conveyance at the time the offender enters

therein; or

c. To commit or attempt to commit a forcible felony, as defined in ss. 776.08.

(2) Burglary is a felony of the first degree, punis

course of committing the offense, the offender:

(a) Makes an assault or battery upon any person; or

dangerous weapon; or

(c) Enters an occupied or unoccupied dwelling or structure, and:

committing the offense, and thereby damages the dwelling or structure; or

excess of $1,000.

(3) Burglary is a felony of the second degree, punishable as provided in ss. 775.082, ss. 775.08or ss. 775.084, if, in the course o

offender enters or remains in a:

remains;

remains;

remains; or

remains.

(4) Burglary is a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083ss. 775.084, if, in the course of c

offender enters or remains in a:

remains; or

or remains.

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810.06 Possession of burglary tools.—

Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the

5.082, ss. 775.083, or ss. 775.08

of of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of

such structure or conveyance at any time stealthily and without the consent of the owner or occupant thereof is

t to commit an offense.

, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to

(2) (a) Except as otherwise provided in this subsection, trespass in a structure or conveyance is a

d, to trespass, or was in the structure or conveyance, the trespass in a structure or

conveyance is a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss.

. Any

r

taking son, if done in compliance with the requirements of this

paragraph, shall not render such person criminally or civilly liable for false arrest, false

hose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case

(1) (a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:

third degree, punishable as provided in ss. 77

810.07 Prima facie evidence of intent.—

(1) In a trial on the charge of burglary, pro

entering with intent to commit an offense.

(2) In a trial on the charge of attempted burglary, proof of the attempt to enter

prima facie evidence of attempting to enter with inten

810.08 Trespass in structure or conveyance.—

(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited

do so, commits the offense of trespass in a structure or conveyance.

misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083.

(b) If there is a human being in the structure or conveyance at the time the offender trespasseattempted

775.083.

(c) If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and he or she reasonably believes that the person to be taken into custody and detained has committed or iscommitting such violation. In the event a person is taken into custody, a law enforcement officeshall be called as soon as is practicable after the person has been taken into custody. The into custody and detention by such per

imprisonment, or unlawful detention.

(3) As used in this section, the term “person authorized" means any owner or lessee, or his or her agent, or any law enforcement officer w

of a threat to public safety or welfare.

810.09 Trespass on property other than structure or conveyance.—

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1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in ss. 810.011; or

2. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass commits the offense of trespass on property other than a structure or conveyance.

(b) As used in this section, the term “unenclosed curtilage" means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.

(2) (a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

(b) If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person, or if the offender willfully opens any door, fence, or gate or does any act that exposes animals, crops, or other property to waste, destruction, or freedom; unlawfully dumps litter on property; or trespasses on property other than a structure or conveyance, the offender commits a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

(c) If the offender is armed with a firearm or other dangerous weapon during the commission of the offense of trespass on property other than a structure or conveyance, he or she is guilty of a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and that the person to be taken into custody and detained has committed or is committing such violation. In the event a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention in compliance with the requirements of this paragraph does not result in criminal or civil liability for false arrest, false imprisonment, or unlawful detention.

(d) The offender commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if the property trespassed is a construction site that is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY."

(e) The offender commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if the property trespassed upon is commercial horticulture property and the property is legally posted and identified in substantially the following manner: “THIS AREA IS DESIGNATED COMMERCIAL PROPERTY FOR HORTICULTURE PRODUCTS, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY."

(f) The offender commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if the property trespassed upon is an agricultural site for testing or research purposes that is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED AGRICULTURAL SITE FOR TESTING OR RESEARCH PURPOSES, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY."

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(g) Any person who in taking or attempting to take any animal described in ss. 372.001(3) or (4), or in killing, attempting to kill, or endangering any animal described in ss. 585.01(13) knowingly propels or causes to be propelled any potentially lethal projectile over or across private land without authorization commits trespass, a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084. For purposes of this paragraph, the term “potentially lethal projectile" includes any projectile launched from any firearm, bow, crossbow, or similar tensile device. This section shall not apply to any governmental agent or employee acting within the scope of his or her official duties.

(3) As used in this section, the term “authorized person" or “person authorized" means any owner, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner, or his or her agent, to communicate an order to leave the property in the case of a threat to public safety or welfare.

810.10 Posted land; removing notices unlawful; penalty.—

(1) It is unlawful for any person to willfully remove, destroy, mutilate, or commit any act designed to remove, mutilate, or reduce the legibility or effectiveness of any posted notice placed by the owner, tenant, lessee, or occupant of legally enclosed or legally posted land pursuant to any law of this state for the purpose of legally enclosing the same.

(2) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083.

810.115 Breaking or injuring fences.—

Whoever willfully and maliciously breaks down, mars, injures, defaces, cuts, or otherwise creates or causes to be created an opening, gap, interruption, or break in any fence, or any part thereof, belonging to or enclosing land not his or her own, or whoever causes to be broken down, marred, injured, defaced, or cut any fence belonging to or enclosing land not his or her own, commits a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083, and the court may require full compensation to the owner of the fence for any and all damages or losses resulting directly or indirectly from the act or commission pursuant to ss. 775.089.

810.12 Unauthorized entry on land; prima facie evidence of trespass.—

(1) The unauthorized entry by any person into or upon any enclosed and posted land shall be prima facie evidence of the intention of such person to commit an act of trespass.

(2) The act of entry upon enclosed and posted land without permission of the owner of said land by any worker, servant, employee, or agent while actually engaged in the performance of his or her work or duties incident to such employment and while under the supervision or direction, or through the procurement, of any other person acting as supervisor, foreman, employer, or principal, or in any other capacity, shall be prima facie evidence of the causing, and of the procurement, of such act by the supervisor, foreman, employer, principal, or other person.

(3) The act committed by any person or persons of taking, transporting, operating, or driving, or the act of permitting or consenting to the taking or transporting of, any machine, tool, motor vehicle, or draft animal into or upon any enclosed and posted land without the permission of the owner of said land by any person who is not the owner of such machine, tool, vehicle, or animal, but with the knowledge or consent of the owner of such machine, tool, vehicle, or animal, or of the person then having the right to possession thereof, shall be prima facie evidence of the intent of such owner of such machine, tool, vehicle, or animal, or of the person then entitled to the possession thereof, to cause or procure an act of trespass.

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(4) As used herein, the term “owner of said land" shall include the beneficial owner, lessee, occupant, or other person having any interest in said land under and by virtue of which that person is entitled to possession thereof, and shall also include the agents or authorized employees of such owner.

(5) However, this section shall not apply to any official or employee of the state or a county, municipality, or other governmental agency now authorized by law to enter upon lands or to registered engineers and surveyors and mappers authorized to enter lands pursuant to ss. 471.027 and 472.029. The provisions of this section shall not apply to the trimming or cutting of trees or timber by municipal or private public utilities, or their employees, contractors, or subcontractors, when such trimming is required for the establishment or maintenance of the service furnished by any such utility.

(k) The unlawful dumping by any person of any litter in violation of ss. 403.413(4) is prima facie evidence of the intention of such person to commit an act of trespass. If any waste that is dumped in violation of ss. 403.413(4) is discovered to contain any article, including, but not limited to, a letter, bill, publication, or other writing that displays the name of a person thereon, addressed to such person or in any other manner indicating that the article last belonged to such person, that discovery raises a mere inference that the person so identified has violated this section. If the court finds that the discovery of the location of the article is corroborated by the existence of an independent fact or circumstance which, standing alone, would constitute evidence sufficient to prove a violation of ss. 403.413(4), such person is rebuttably presumed to have violated that section.

810.13 Cave vandalism and related offenses.—

(1) DEFINITIONS.—As used in this act:

(a) “Cave" means any void, cavity, recess, or system of interconnecting passages which naturally occurs beneath the surface of the earth or within a cliff or ledge, including natural subsurface water and drainage systems but not including any mine, tunnel, aqueduct, or other manmade excavation, and which is large enough to permit a person to enter. The word “cave" includes any cavern, natural pit, or sinkhole which is an extension of an entrance to a cave.

(b) “Cave life" means any life form which is indigenous to a cave or to a cave ecosystem.

(c) “Gate" means any structure or device located to limit or prohibit access or entry to a cave.

(d) “Owner" means a person who owns title to land where a cave is located, including a person who holds a leasehold estate in such land; the state or any of its agencies, departments, boards, bureaus, commissions, or authorities; or any county, municipality, or other political subdivision of the state.

(e) “Person" means any individual, partnership, firm, association, trust, corporation, or other legal entity.

(f) “Sinkhole" means a closed topographic depression or basin, generally draining underground, including, but not restricted to, a doline, limesink, or sink.

(g) “Speleogen" means an erosional feature of a cave boundary, including, but not restricted to, anastomoses, scallops, rills, flutes, spongework, or pendants.

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(h) “Speleothem" means a natural mineral formation or deposit occurring in a cave, including, but not restricted to, a stalagmite, stalactite, helictite, anthodite, gypsum flower, gypsum needle, angel hair, soda straw, drapery, bacon, cave pearl, popcorn (coral), rimstone dam, column, or flowstone. Speleothems are commonly composed of calcite, epsomite, gypsum, aragonite, celestite, or other similar minerals.

(2) VANDALISM.—It is unlawful for any person, without the prior written permission of the owner, to:

(a) Break, break off, crack, carve upon, write upon, burn, mark upon, remove, or in any manner destroy, disturb, deface, mar, or harm the surfaces of any cave or any natural material which may be found therein, whether attached or broken, including speleothems, speleogens, or sedimentary deposits. This paragraph does not prohibit minimal disturbance or removal for scientific inquiry.

(b) Break, force, tamper with, or otherwise disturb a lock, gate, door, or other obstruction designed to control or prevent access to a cave, even though entrance thereto may not be gained.

(c) Remove, deface, or tamper with a sign stating that a cave is posted or citing provisions of this act.

(3) CAVE LIFE.—It is unlawful to remove, kill, harm, or otherwise disturb any naturally occurring organism within a cave, except for safety or health reasons. The provisions of this subsection do not prohibit minimal disturbance or removal of organisms for scientific inquiry.

(4) POLLUTION AND LITTERING.—It is unlawful to store in a cave any chemical or other material which may be detrimental or hazardous to the cave, to the mineral deposits therein, to the cave life therein, to the waters of the state, or to persons using such cave for any purposes. It is also unlawful to dump, litter, dispose of, or otherwise place any refuse, garbage, dead animal, sewage, trash, or other similar waste materials in a cave. This subsection shall not apply to activity which is regulated pursuant to ss. 373.106, regarding the intentional introduction of water into an underground formation, or chapter 377, regarding the injection of fluids into subsurface formations in connection with oil or gas operations.

(5) SALE OF SPELEOTHEMS.—It is unlawful for any person to sell or offer for sale any speleothems in this state or to transport them for sale outside this state.

(6) PENALTIES.—Any person who violates subsection (2), subsection (3), subsection (4), or subsection (5) is guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

810.14 Voyeurism prohibited; penalties.—

(1) A person commits the offense of voyeurism when he or she, with lewd, lascivious, or indecent intent, secretly observes, photographs, films, videotapes, or records another person when such other person is located in a dwelling, structure, or conveyance and such location provides a reasonable expectation of privacy.

(2) A person who violates this section commits a misdemeanor of the first degree for the first violation, punishable as provided in ss. 775.082 or ss. 775.083.

(3) A person who violates this section and who has been previously convicted or adjudicated delinquent two or more times of any violation of this section commits a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

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(3) For purposes of this section, a person has been previously convicted or adjudicated delinquent of a violation of this section if the violation resulted in a conviction sentenced separately, or an adjudication of delinquency entered separately, prior to the current offense.

Theft, Chapter 812:

812.012 Definitions.—

As used in ss. 812.012-812.037: (1) “Cargo" means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility. (2) “Dealer in property" means any person in the business of buying and selling property. (3) “Obtains or uses" means any manner of:

(a) Taking or exercising control over property.

(b) Making any unauthorized use, disposition, or transfer of property.

(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

(d)

1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception; or

2. Other conduct similar in nature. (4) “Property" means anything of value, and includes:

(a) Real property, including things growing on, affixed to, and found in land.

(b) Tangible or intangible personal property, including rights, privileges, interests, and claims.

(c) Services. (5) “Property of another" means property in which a person has an interest upon which another person is not privileged to infringe without consent, whether or not the other person also has an interest in the property. (6) “Services" means anything of value resulting from a person's physical or mental labor or skill, or from the use, possession, or presence of property, and includes:

(a) Repairs or improvements to property.

(b) Professional services.

(c) Private, public, or government communication, transportation, power, water, or sanitation services.

(d) Lodging accommodations.

(e) Admissions to places of exhibition or entertainment. (7) “Stolen property" means property that has been the subject of any criminally wrongful taking. (8) “Traffic" means:

(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.

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(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property. (9) “Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity. (10) “Value" means value determined according to any of the following:

(a)

1. Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

2. The value of a written instrument that does not have a readily ascertainable market value, in the case of an instrument such as a check, draft, or promissory note, is the amount due or collectible or is, in the case of any other instrument which creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation, the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner, suffered by reason of losing an advantage over those who do not know of or use the trade secret.

(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

(c) Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or from several persons, may be aggregated in determining the grade of the offense.

812.014 Theft.—

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

(2) (a)

1. If the property stolen is valued at $100,000 or more; or

2. If the property stolen is cargo valued at $50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or

3. If the offender commits any grand theft and:

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a. In the course of committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; or

b. In the course of committing the offense the offender causes damage to the real or personal property of another in excess of $1,000,

the offender commits grand theft in the first degree, punishable as a felony of the first degree, as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

(b)

1. If the property stolen is valued at $20,000 or more, but less than $100,000;

2. The property stolen is cargo valued at less than $50,000 that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or

3. The property stolen is emergency medical equipment, valued at $300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401,

the offender commits grand theft in the second degree, punishable as a felony of the second degree, as provided in ss. 775.082, ss. 775.083, or ss. 775.084. Emergency medical equipment means mechanical or electronic apparatus used to provide emergency services and care as defined in ss. 395.002(10) or to treat medical emergencies.

(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if the property stolen is:

1. Valued at $300 or more, but less than $5,000.

2. Valued at $5,000 or more, but less than $10,000.

3. Valued at $10,000 or more, but less than $20,000.

4. A will, codicil, or other testamentary instrument.

5. A firearm.

6. A motor vehicle, except as provided in paragraph (2)(a).

7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed.

8. Any fire extinguisher.

9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.

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10. Taken from a designated construction site identified by the posting of a sign as provided for in ss. 810.09(2)(d).

11. Any stop sign.

(d) It is grand theft of the third degree and a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084, if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined in ss. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to ss. 810.09(1).

(e) Except as provided in paragraph (d), if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree, as provided in ss. 775.082 or ss. 775.083.

(3) (a) Theft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree, punishable as provided in ss. 775.082 or ss. 775.083, and as provided in subsection (5), as applicable.

(b) A person who commits petit theft and who has previously been convicted of any theft commits a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

(c) A person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree, punishable as provided in ss. 775.082 or ss. 775.083.

(d)

1. Every judgment of guilty or not guilty of a petit theft shall be in writing, signed by the judge, and recorded by the clerk of the circuit court. The judge shall cause to be affixed to every such written judgment of guilty of petit theft, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge's signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect:

“I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, , and that they were placed thereon by said defendant in my presence, in open court, this the day of , (year) ."

Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word “Judge."

2. Any such written judgment of guilty of a petit theft, or a certified copy thereof, is admissible in evidence in the courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge are the fingerprints of the defendant against whom such judgment of guilty of a petit theft was rendered.

(4) Failure to comply with the terms of a lease when the lease is for a term of 1 year or longer shall not constitute a violation of this section unless demand for the return of the property leased has been made in writing and the lessee has failed to return the property within 7 days of his or her receipt of the demand for return of the property. A demand mailed by certified or registered mail, evidenced by return receipt, to the last known address of the lessee shall be deemed sufficient and equivalent to the demand having been received by the lessee, whether such demand shall be returned undelivered or not.

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(5) (a) No person shall drive a motor vehicle so as to cause it to leave the premises of an establishment at which gasoline offered for retail sale was dispensed into the fuel tank of such motor vehicle unless the payment of authorized charge for the gasoline dispensed has been made.

(b) In addition to the penalties prescribed in paragraph (3)(a), every judgment of guilty of a petit theft for property described in this subsection shall provide for the suspension of the convicted person's driver's license. The court shall forward the driver's license to the Department of Highway Safety and Motor Vehicles in accordance with ss. 322.25.

1. The first suspension of a driver's license under this subsection shall be for a period of up to 6 months.

2. The second or subsequent suspension of a driver's license under this subsection shall be for a period of 1 year.

Forgery, Chapter 831:

831.01 Forgery.—

Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

Damaging or tampering with sewerage systems, Chapter 877:

877.09 Tampering with or damaging sewer systems.—

(1) Whoever willfully or fraudulently, without the consent of any person, firm, or corporation or lessee, trustee, or receiver owning, leasing, operating, or managing any sewer system, shall tap, make or cause to be made any connection with, injure or knowingly to suffer to be injured, tamper or meddle with, plug or in any way hinder, use without authorization, or interfere with any lines, mains, pipes, laterals, collectors, connections, interceptors, manholes, appliances, or appurtenances used for or in connection with any sewer system and belonging to such person, firm, or corporation or lessee, trustee, or receiver, shall be guilty of a misdemeanor of the first degree, punishable as provided in ss. 775.082 or ss. 775.083.

(3) The existence of any tap, connection to, unauthorized use of, or interference with any line, main, pipe, lateral, collector, connection, interceptor, or other appliance or appurtenance used for or in connection with any sewer system and belonging to any person, firm, or corporation or lessee, trustee, or receiver owning, leasing, operating, or managing any sewer system shall be prima facie evidence of intent to violate this law by the person receiving the direct benefit from such tap, connection, or interference.

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Racketeering, Chapter 895:

895.02 Definitions.—

As used in ss. 895.01-895.08, the term: (1) “Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:

(a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes:

1. Section 210.18, relating to evasion of payment of cigarette taxes.

2. Section 403.727(3)(b), relating to environmental control.

3. Section 414.39, relating to public assistance fraud.

4. Section 409.920, relating to Medicaid provider fraud.

5. Section 440.105 or ss. 440.106, relating to workers' compensation.

6. Part IV of chapter 501, relating to telemarketing.

7. Chapter 517, relating to sale of securities and investor protection.

8. Section 550.235, ss. 550.3551, or ss. 550.3605, relating to dogracing and horseracing.

9. Chapter 550, relating to jai alai frontons.

10. Chapter 552, relating to the manufacture, distribution, and use of explosives.

11. Chapter 560, relating to money transmitters, if the violation is punishable as a felony.

12. Chapter 562, relating to beverage law enforcement.

13. Section 624.401, relating to transacting insurance without a certificate of authority, ss. 624.437(4)(c)1., relating to operating an unauthorized multiple-employer welfare arrangement, or ss. 626.902(1)(b), relating to representing or aiding an unauthorized insurer.

14. Section 655.50, relating to reports of currency transactions, when such violation is punishable as a felony.

15. Chapter 687, relating to interest and usurious practices.

16. Section 721.08, ss. 721.09, or ss. 721.13, relating to real estate timeshare plans.

17. Chapter 782, relating to homicide.

18. Chapter 784, relating to assault and battery.

19. Chapter 787, relating to kidnapping.

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20. Chapter 790, relating to weapons and firearms.

21. Section 796.03, ss. 796.04, s. 796.05, or ss. 796.07, relating to prostitution.

22. Chapter 806, relating to arson.

23. Section 810.02(2)(c), relating to specified burglary of a dwelling or structure.

24. Chapter 812, relating to theft, robbery, and related crimes.

25. Chapter 815, relating to computer-related crimes.

26. Chapter 817, relating to fraudulent practices, false pretenses, fraud generally, and credit card crimes.

27. Chapter 825, relating to abuse, neglect, or exploitation of an elderly person or disabled adult.

28. Section 827.071, relating to commercial sexual exploitation of children.

29. Chapter 831, relating to forgery and counterfeiting.

30. Chapter 832, relating to issuance of worthless checks and drafts.

31. Section 836.05, relating to extortion.

32. Chapter 837, relating to perjury.

33. Chapter 838, relating to bribery and misuse of public office.

34. Chapter 843, relating to obstruction of justice.

35. Section 847.011, ss. 847.012, ss. 847.013, ss. 847.06, or ss. 847.07, relating to obscene literature and profanity.

36. Section 849.09, ss. 849.14, ss. 849.15, ss. 849.23, or ss. 849.25, relating to gambling.

37. Chapter 874, relating to criminal street gangs.

38. Chapter 893, relating to drug abuse prevention and control.

39. Chapter 896, relating to offenses related to financial transactions.

40. Sections 914.22 and 914.23, relating to tampering with a witness, victim, or informant, and retaliation against a witness, victim, or informant.

41. Sections 918.12 and 918.13, relating to tampering with jurors and evidence.

(b) Any conduct defined as “racketeering activity" under 18 U.S.C. s. 1961(1). (2) “Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted:

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(a) In violation of any one of the following provisions of law:

1. Section 550.235, ss. 550.3551, or ss. 550.3605, relating to dogracing and horseracing.

2. Chapter 550, relating to jai alai frontons.

3. Chapter 687, relating to interest and usury.

4. Section 849.09, ss. 849.14, ss. 849.15, ss. 849.23, or ss. 849.25, relating to gambling.

(b) In gambling activity in violation of federal law or in the business of lending money at a rate usurious under state or federal law. (3) “Enterprise" means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities. A criminal street gang, as defined in ss. 874.03, constitutes an enterprise. (4) “Pattern of racketeering activity" means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct. (5) “Documentary material" means any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic tape, computer printout, other data compilation from which information can be obtained or from which information can be translated into usable form, or other tangible item. (6) “RICO lien notice" means the notice described in ss. 895.05(12) or in ss. 895.07. (7) “Investigative agency" means the Department of Legal Affairs, the Office of Statewide Prosecution, or the office of a state attorney. (8) “Beneficial interest" means any of the following:

(a) The interest of a person as a beneficiary under a trust established pursuant to ss. 689.07 or ss. 689.071 in which the trustee for the trust holds legal or record title to real property;

(b) The interest of a person as a beneficiary under any other trust arrangement pursuant to which a trustee holds legal or record title to real property for the benefit of such person; or

(c) The interest of a person under any other form of express fiduciary arrangement pursuant to which any other person holds legal or record title to real property for the benefit of such person.

The term “beneficial interest" does not include the interest of a stockholder in a corporation or the interest of a partner in either a general partnership or a limited partnership. A beneficial interest shall be deemed to be located where the real property owned by the trustee is located. (9) “Real property" means any real property or any interest in such real property, including, but not limited to, any lease of or mortgage upon such real property. (10) “Trustee" means any of the following:

(a) Any person acting as trustee pursuant to a trust established under ss. 689.07 or ss. 689.071 in which the trustee holds legal or record title to real property.

(b) Any person who holds legal or record title to real property in which any other person has a beneficial interest.

(c) Any successor trustee or trustees to any or all of the foregoing persons.

However, the term “trustee" does not include any person appointed or acting as a personal representative as defined in ss. 731.201(25) or appointed or acting as a trustee of any testamentary

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trust or as a trustee of any indenture of trust under which any bonds have been or are to be issued. (11) “Criminal proceeding" means any criminal proceeding commenced by an investigative agency under ss. 895.03 or any other provision of the Florida RICO Act. (12) “Civil proceeding" means any civil proceeding commenced by an investigative agency under ss. 895.05 or any other provision of the Florida RICO Act.

895.03 Prohibited activities and defense.—

(1) It is unlawful for any person who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise.

(2) It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.

(3) It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.

(4) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (1),

subsection (2), or subsection (3).

895.04 Criminal penalties and alternative fine.—

(1) Any person convicted of engaging in activity in violation of the provisions of ss. 895.03 is guilty of a felony of the first degree and shall be punished as provided in ss. 775.082, ss. 775.083, or ss. 775.084.

(2) In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of the provisions of ss. 895.03, through which the person derived pecuniary value, or by which he or she caused personal injury or property damage or other loss, may be sentenced to pay a fine that does not exceed 3 times the gross value gained or 3 times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred.

(3) The court shall hold a hearing to determine the amount of the fine authorized by subsection (2).

(4) For the purposes of subsection (2), “pecuniary value" means:

(a) Anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else the primary significance of which is economic advantage; or

(b)Any other property or service that has a value in excess of $100.

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Florida Contraband Forfeiture Act, Chapter 932.701, et seq.

932.701 Short title; definitions.—

(1) Sections 932.701-932.707 shall be known and may be cited as the “Florida Contraband Forfeiture Act."

(2) As used in the Florida Contraband Forfeiture Act:

(a) “Contraband article" means:

1. Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange that was used, was attempted to be used, or was intended to be used in violation of any provision of chapter 893, if the totality of the facts presented by the state is clearly sufficient to meet the state's burden of establishing probable cause to believe that a nexus exists between the article seized and the narcotics activity, whether or not the use of the contraband article can be traced to a specific narcotics transaction.

2. Any gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state.

3. Any equipment, liquid or solid, which was being used, is being used, was attempted to be used, or intended to be used in violation of the beverage or tobacco laws of the state.

4. Any motor fuel upon which the motor fuel tax has not been paid as required by law.

5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.

6. Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.

7. Any personal property, including, but not limited to, equipment, money, securities, books, records, research, negotiable instruments, currency, or any vessel, aircraft, item, object, tool, substance, device, weapon, machine, or vehicle of any kind in the possession of or belonging to any person who takes aquaculture products in violation of ss. 812.014(2)(c).

8. Any motor vehicle offered for sale in violation of ss. 320.28.

9. Any motor vehicle used during the course of committing an offense in violation of ss. 322.34(9)(a).

(b) “Bona fide lienholder" means the holder of a lien perfected pursuant to applicable law.

(c) “Promptly proceed" means to file the complaint within 45 days after seizure.

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(d) “Complaint" is a petition for forfeiture filed in the civil division of the circuit court by the seizing agency requesting the court to issue a judgment of forfeiture.

(e) “Person entitled to notice" means any owner, entity, bona fide lienholder, or person in possession of the property subject to forfeiture when seized, who is known to the seizing agency after a diligent search and inquiry.

(f) “Adversarial preliminary hearing" means a hearing in which the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Florida Contraband Forfeiture Act.

(g) “Forfeiture proceeding" means a hearing or trial in which the court or jury determines whether the subject property shall be forfeited.

(h) “Claimant" means any party who has proprietary interest in property subject to forfeiture and has standing to challenge such forfeiture, including owners, registered owners, bona fide lienholders, and titleholders.

932.702 Unlawful to transport, conceal, or possess contraband articles or to acquire real or personal property with contraband proceeds; use of vessel, motor vehicle, aircraft, other personal property, or real property.—

It is unlawful:

(1) To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.

(2) To conceal or possess any contraband article.

(3) To use any vessel, motor vehicle, aircraft, other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

(4) To conceal, or possess, or use any contraband article as an instrumentality in the commission of or in aiding or abetting in the commission of any felony or violation of the Florida Contraband Forfeiture Act.

(5) To acquire real or personal property by the use of proceeds obtained in violation of the Florida Contraband Forfeiture Act.

932.703 Forfeiture of contraband article; exceptions.—

(1) (a) Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

(b) Notwithstanding any other provision of the Florida Contraband Forfeiture Act, except the provisions of paragraph (a), contraband articles set forth in ss. 932.701(2)(a)7. used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, shall be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

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(c) All rights to, interest in, and title to contraband articles used in violation of ss. 932.702 shall immediately vest in the seizing law enforcement agency upon seizure.

(d) The seizing agency may not use the seized property for any purpose until the rights to, interest in, and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act. This section does not prohibit use or operation necessary for reasonable maintenance of seized property. Reasonable efforts shall be made to maintain seized property in such a manner as to minimize loss of value.

(2) (a) Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act. Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. When a postseizure, adversarial preliminary hearing as provided in this section is desired, a request must be made in writing by certified mail, return receipt requested, to the seizing agency. The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter.

(b) Real property may not be seized or restrained, other than by lis pendens, subsequent to a violation of the Florida Contraband Forfeiture Act until the persons entitled to notice are afforded the opportunity to attend the preseizure adversarial preliminary hearing. A lis pendens may be obtained by any method authorized by law. Notice of the adversarial preliminary hearing shall be by certified mail, return receipt requested. The purpose of the adversarial preliminary hearing is to determine whether probable cause exists to believe that such property has been used in violation of the Florida Contraband Forfeiture Act. The seizing agency shall make a diligent effort to notify any person entitled to notice of the seizure. The preseizure adversarial preliminary hearing provided herein shall be held within 10 days of the filing of the lis pendens or as soon as practicable.

(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.

(3) Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act; however, such action may be maintained if forfeiture proceedings are not initiated within 45 days after the date of seizure. However, if good cause is shown, the court may extend the aforementioned prohibition to 60 days.

(4) In any incident in which possession of any contraband article defined in ss. 932.701(2)(a) constitutes a felony, the vessel, motor vehicle, aircraft, other personal property, or real property in or on which such contraband article is located at the time of seizure shall be contraband subject to

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forfeiture. It shall be presumed in the manner provided in ss. 90.302(2) that the vessel, motor vehicle, aircraft, other personal property, or real property in which or on which such contraband article is located at the time of seizure is being used or was attempted or intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in ss. 932.701(2).

(5) The court shall order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section if any of the property described in this section:

(a) Cannot be located;

(b) Has been transferred to, sold to, or deposited with, a third party;

(c) Has been placed beyond the jurisdiction of the court;

(d) Has been substantially diminished in value by any act or omission of the person in possession of the property; or

(e) Has been commingled with any property which cannot be divided without difficulty.

(6) (a) Property may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.

(b) A bona fide lienholder's interest that has been perfected in the manner prescribed by law prior to the seizure may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the lienholder had actual knowledge, at the time the lien was made, that the property was being employed or was likely to be employed in criminal activity. If a lienholder's interest is not subject to forfeiture under the requirements of this section, such interest shall be preserved by the court by ordering the lienholder's interest to be paid as provided in ss. 932.7055.

(c) Property titled or registered between husband and wife jointly by the use of the conjunctives “and," “and/or," or “or," in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the coowner either knew or had reason to know, after reasonable inquiry, that such property was employed or was likely to be employed in criminal activity.

(d) A vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles, which vehicle was rented or leased in the manner prescribed by law prior to the seizure, may not be forfeited under the Florida Contraband Forfeiture Act, and no fine, penalty, or administrative charge, other than reasonable and customary charges for towing and storage, shall be imposed by any governmental agency on the company which rented or leased the vehicle, unless the seizing agency establishes by preponderance of the evidence that the renter or lessor had actual knowledge, at the time the vehicle was rented or leased, that the vehicle was being employed or was likely to be employed in criminal activity. When a vehicle that is rented or leased from a company engaged in the business of renting or leasing vehicles is seized under the Florida Contraband Forfeiture Act, upon learning the address or phone number of the company, the seizing law enforcement agency shall, as soon as practicable, inform the company that the vehicle has been seized and is available for the company to take possession upon payment of the reasonable and customary charges for towing and storage.

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(7) Any interest in, title to, or right to property titled or registered jointly by the use of the conjunctives “and," “and/or," or “or" held by a coowner, other than property held jointly between husband and wife, may not be forfeited unless the seizing agency establishes by a preponderance of the evidence that the coowner either knew, or had reason to know, after reasonable inquiry, that the property was employed or was likely to be employed in criminal activity. When the interests of each culpable coowner are forfeited, any remaining coowners shall be afforded the opportunity to purchase the forfeited interest in, title to, or right to the property from the seizing law enforcement agency. If any remaining coowner does not purchase such interest, the seizing agency may hold the property in coownership, sell its interest in the property, liquidate its interest in the property, or dispose of its interest in the property in any other reasonable manner.

(10) It is an affirmative defense to a forfeiture proceeding that the nexus between the property sought to be forfeited and the commission of any underlying violation was incidental or entirely accidental. The value of the property sought to be forfeited in proportion to any other factors must not be considered in any determination as to this affirmative defense.

932.704 Forfeiture proceedings.—

(1) It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes. The potential for obtaining revenues from forfeitures must not override fundamental considerations such as public safety, the safety of law enforcement officers, or the investigation and prosecution of criminal activity. It is also the policy of this state that law enforcement agencies ensure that, in all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to federal and state constitutional limitations regarding an individual's right to be free from unreasonable searches and seizures, including, but not limited to, the illegal use of stops based on a pretext, coercive-consent searches, or a search based solely upon an individual's race or ethnicity.

(2) In each judicial circuit, all civil forfeiture cases shall be heard before a circuit court judge of the civil division, if a civil division has been established. The Florida Rules of Civil Procedure shall govern forfeiture proceedings under the Florida Contraband Forfeiture Act unless otherwise specified under the Florida Contraband Forfeiture Act.

(3) Any trial on the ultimate issue of forfeiture shall be decided by a jury, unless such right is waived by the claimant through a written waiver or on the record before the court conducting the forfeiture proceeding.

(4) The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.

(5) (a) The complaint shall be styled, “In RE: FORFEITURE OF " (followed by the name or description of the property). The complaint shall contain a brief jurisdictional statement, a description of the subject matter of the proceeding, and a statement of the facts sufficient to state a cause of action that would support a final judgment of forfeiture. The complaint must be accompanied by a verified supporting affidavit.

(b) If no person entitled to notice requests an adversarial preliminary hearing, as provided in ss. 932.703(2)(a), the court, upon receipt of the complaint, shall review the complaint and the verified supporting affidavit to determine whether there was probable cause for the seizure. Upon a finding of probable cause, the court shall enter an order showing the probable cause finding.

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(c) The court shall require any claimant who desires to contest the forfeiture to file and serve upon the attorney representing the seizing agency any responsive pleadings and affirmative defenses within 20 days after receipt of the complaint and probable cause finding.

(6) (a) If the property is required by law to be titled or registered, or if the owner of the property is known in fact to the seizing agency, or if the seized property is subject to a perfected security interest in accordance with the Uniform Commercial Code, chapter 679, the attorney for the seizing agency shall serve the forfeiture complaint as an original service of process under the Florida Rules of Civil Procedure and other applicable law to each person having an ownership or security interest in the property. The seizing agency shall also publish, in accordance with chapter 50, notice of the forfeiture complaint once each week for 2 consecutive weeks in a newspaper of general circulation, as defined in ss. 165.031, in the county where the seizure occurred.

(b) The complaint must, in addition to stating that which is required by ss. 932.703(2)(a) and (b), as appropriate, describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the complaint will be filed.

(c) The seizing agency shall be obligated to make a diligent search and inquiry as to the owner of the subject property, and if, after such diligent search and inquiry, the seizing agency is unable to ascertain any person entitled to notice, the actual notice requirements by mail shall not be applicable.

(7) When the claimant and the seizing law enforcement agency agree to settle the forfeiture action prior to the conclusion of the forfeiture proceeding, the settlement agreement shall be reviewed, unless such review is waived by the claimant in writing, by the court or a mediator or arbitrator agreed upon by the claimant and the seizing law enforcement agency. If the claimant is unrepresented, the settlement agreement must include a provision that the claimant has freely and voluntarily agreed to enter into the settlement without benefit of counsel.

(8) Upon clear and convincing evidence that the contraband article was being used in violation of the Florida Contraband Forfeiture Act, the court shall order the seized property forfeited to the seizing law enforcement agency. The final order of forfeiture by the court shall perfect in the law enforcement agency right, title, and interest in and to such property, subject only to the rights and interests of bona fide lienholders, and shall relate back to the date of seizure.

(9) (a) When the claimant prevails at the conclusion of the forfeiture proceeding, if the seizing agency decides not to appeal, the seized property shall be released immediately to the person entitled to possession of the property as determined by the court. Under such circumstances, the seizing agency shall not assess any towing charges, storage fees, administrative costs, or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.

(b) When the claimant prevails at the conclusion of the forfeiture proceeding, any decision to appeal must be made by the chief administrative official of the seizing agency, or his or her designee. The trial court shall require the seizing agency to pay to the claimant the reasonable loss of value of the seized property when the claimant prevails at trial or on appeal and the seizing agency retained the seized property during the trial or appellate process. The trial court shall also require the seizing agency to pay to the claimant any loss of income directly attributed to the continued seizure of income-producing property during the trial or appellate process. If the claimant prevails on appeal, the seizing agency shall immediately release the seized property to the person entitled to possession of the property as determined by the court, pay any cost as assessed by the court, and may not assess any towing charges, storage fees, administrative costs,

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or maintenance costs against the claimant with respect to the seized property or the forfeiture proceeding.

(10) The court shall award reasonable attorney's fees and costs, up to a limit of $1,000, to the claimant at the close of the adversarial preliminary hearing if the court makes a finding of no probable cause. When the claimant prevails, at the close of forfeiture proceedings and any appeal, the court shall award reasonable trial attorney's fees and costs to the claimant if the court finds that the seizing agency has not proceeded at any stage of the proceedings in good faith or that the seizing agency's action which precipitated the forfeiture proceedings was a gross abuse of the agency's discretion. The court may order the seizing agency to pay the awarded attorney's fees and costs from the appropriate contraband forfeiture trust fund. Nothing in this subsection precludes any party from electing to seek attorney's fees and costs under chapter 57 or other applicable law.

(11) (a) The Department of Law Enforcement, in consultation with the Florida Sheriffs Association and the Florida Police Chiefs Association, shall develop guidelines and training procedures to be used by state and local law enforcement agencies and state attorneys in implementing the Florida Contraband Forfeiture Act. Each state or local law enforcement agency that files civil forfeiture actions under the Florida Contraband Forfeiture Act shall file, by December 31, 1995, a certificate signed by the agency head or his or her designee, which represents that the agency's policies and procedures are in compliance with the guidelines. Each state or local law enforcement agency that seizes property for the purpose of forfeiture shall periodically review seizures of assets made by the agency's law enforcement officers, settlements, and forfeiture proceedings initiated by the agency, to determine whether such seizures, settlements, and forfeitures comply with the Florida Contraband Forfeiture Act and the guidelines adopted under this subsection. The determination of whether an agency will file a civil forfeiture action must be the sole responsibility of the head of the agency or his or her designee.

(b) The determination of whether to seize currency must be made by supervisory personnel. The agency's legal counsel must be notified as soon as possible.

932.7055 Disposition of liens and forfeited property.—

(1) When a seizing agency obtains a final judgment granting forfeiture of real property or personal property, it may elect to:

(a) Retain the property for the agency's use;

(b) Sell the property at public auction or by sealed bid to the highest bidder, except for real property which should be sold in a commercially reasonable manner after appraisal by listing on the market; or

(c) Salvage, trade, or transfer the property to any public or nonprofit organization.

(2) If the forfeited property is subject to a lien preserved by the court as provided in ss. 932.703(6)(b), the agency shall:

(a) Sell the property with the proceeds being used towards satisfaction of any liens; or

(b) Have the lien satisfied prior to taking any action authorized by subsection (1).

(3) The proceeds from the sale of forfeited property shall be disbursed in the following priority:

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(a) Payment of the balance due on any lien preserved by the court in the forfeiture proceedings.

(b) Payment of the cost incurred by the seizing agency in connection with the storage, maintenance, security, and forfeiture of such property.

(c) Payment of court costs incurred in the forfeiture proceeding.

(4) (a) If the seizing agency is a county or municipal agency, the remaining proceeds shall be deposited in a special law enforcement trust fund established by the board of county commissioners or the governing body of the municipality. Such proceeds and interest earned therefrom shall be used for school resource officer, crime prevention, safe neighborhood, drug abuse education and prevention programs, or for other law enforcement purposes, which include defraying the cost of protracted or complex investigations, providing additional equipment or expertise and providing matching funds to obtain federal grants. The proceeds and interest may not be used to meet normal operating expenses of the law enforcement agency.

(b) These funds may be expended upon request by the sheriff to the board of county commissioners or by the chief of police to the governing body of the municipality, accompanied by a written certification that the request complies with the provisions of this subsection, and only upon appropriation to the sheriff's office or police department by the board of county commissioners or the governing body of the municipality.

(c) An agency or organization, other than the seizing agency, that wishes to receive such funds shall apply to the sheriff or chief of police for an appropriation and its application shall be accompanied by a written certification that the moneys will be used for an authorized purpose. Such requests for expenditures shall include a statement describing anticipated recurring costs for the agency for subsequent fiscal years. An agency or organization that receives money pursuant to this subsection shall provide an accounting for such moneys and shall furnish the same reports as an agency of the county or municipality that receives public funds. Such funds may be expended in accordance with the following procedures:

1. Such funds may be used only for school resource officer, crime prevention, safe neighborhood, drug abuse education, or drug prevention programs or such other law enforcement purposes as the board of county commissioners or governing body of the municipality deems appropriate.

2. Such funds shall not be a source of revenue to meet normal operating needs of the law enforcement agency.

3. After July 1, 1992, and during every fiscal year thereafter, any local law enforcement agency that acquires at least $15,000 pursuant to the Florida Contraband Forfeiture Act within a fiscal year must expend or donate no less than 15 percent of such proceeds for the support or operation of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood, or school resource officer program(s). The local law enforcement agency has the discretion to determine which program(s) will receive the designated proceeds.

Notwithstanding the drug abuse education, drug treatment, drug prevention, crime prevention, safe neighborhood, or school resource officer minimum expenditures or donations, the sheriff and the board of county commissioners or the chief of police and the governing body of the municipality may agree to expend or donate such funds over a period of years if the expenditure or donation of such minimum amount in any given fiscal year would exceed the needs of the county or municipality for such program(s). Nothing in this section precludes the expenditure or donation of forfeiture proceeds in excess of the minimum amounts established herein.

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(5) If the seizing agency is a state agency, all remaining proceeds shall be deposited into the General Revenue Fund. However, if the seizing agency is:

(a) The Department of Law Enforcement, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Forfeiture and Investigative Support Trust Fund as provided in ss. 943.362 or into the department's Federal Law Enforcement Trust Fund as provided in ss. 943.365, as applicable.

(b) The Department of Environmental Protection, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Forfeited Property Trust Fund or into the department's Federal Law Enforcement Trust Fund as provided in ss. 20.2553, as applicable.

(c) The Division of Alcoholic Beverages and Tobacco, the proceeds accrued pursuant to the Florida Contraband Forfeiture Act shall be deposited into the Alcoholic Beverage and Tobacco Trust Fund or into the department's Federal Law Enforcement Trust Fund as provided in ss. 561.027, as applicable.

(d) The Department of Highway Safety and Motor Vehicles, the proceeds accrued pursuant to the Florida Contraband Forfeiture Act shall be deposited into the Department of Highway Safety and Motor Vehicles Law Enforcement Trust Fund as provided in ss. 932.705(1)(a) or into the department's Federal Law Enforcement Trust Fund as provided in ss. 932.705(1)(b), as applicable.

(e) The Fish and Wildlife Conservation Commission, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Game Trust Fund as provided in ss. 372.73, 372.9901, and 372.9904, into the Marine Resources Conservation Trust Fund as provided in ss. 370.061, or into the commission's Federal Law Enforcement Trust Fund as provided in ss. 372.107, as applicable.

(f) A state attorney's office acting within its judicial circuit, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Attorney's Forfeiture and Investigative Support Trust Fund to be used for the investigation of crime and prosecution of criminals within the judicial circuit.

(g) A school board security agency employing law enforcement officers, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the School Board Law Enforcement Trust Fund.

(h) One of the State University System police departments acting within the jurisdiction of its employing state university, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into that state university's special law enforcement trust fund.

(i) The Department of Agriculture and Consumer Services, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the Agricultural Law Enforcement Trust Fund or into the department's Federal Law Enforcement Trust Fund as provided in ss. 570.205, as applicable.

(j) The Department of Military Affairs, the proceeds accrued from federal forfeiture sharing pursuant to 21 U.S.C. ss. 881(e)(1)(A) and (3), 18 U.S.C. s. 981(e)(2), and 19 U.S.C. s. 1616a shall be deposited into the Armory Board Trust Fund and used for purposes authorized by such federal provisions based on the department's budgetary authority or into the department's Federal Law Enforcement Trust Fund as provided in ss. 250.175, as applicable.

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(k) The Department of Transportation, the proceeds accrued pursuant to the provisions of the Florida Contraband Forfeiture Act shall be deposited into the State Transportation Trust Fund to be used for purposes of drug interdiction or into the department's Federal Law Enforcement Trust Fund as provided in ss. 339.082, as applicable.

(6) If more than one law enforcement agency is acting substantially to effect the forfeiture, the court having jurisdiction over the forfeiture proceedings shall, upon motion, equitably distribute all proceeds and other property among the seizing agencies.

(7) Upon the sale of any motor vehicle, vessel, aircraft, real property, or other property requiring a title, the appropriate agency shall issue a title certificate to the purchaser. Upon the request of any law enforcement agency which elects to retain titled property after forfeiture, the appropriate state agency shall issue a title certificate for such property to said law enforcement agency.

(8) (a) Every law enforcement agency shall submit semiannual reports to the Department of Law Enforcement indicating whether the agency has seized or forfeited property under the Florida Contraband Forfeiture Act. Any law enforcement agency receiving or expending forfeited property or proceeds from the sale of forfeited property in accordance with the Florida Contraband Forfeiture Act shall submit completed semiannual reports, by April 10, and October 10, documenting the receipts and expenditures, on forms promulgated by the Department of Law Enforcement, to the entity which has budgetary authority over such agency and to the Department of Law Enforcement. The semiannual report shall specify the type, approximate value, any court case number, type of offense, disposition of the property received, and the amount of any proceeds received or expended.

(b) The Department of Law Enforcement shall submit an annual report to the criminal justice committees of the House of Representatives and of the Senate compiling the information and data related in the semiannual reports submitted by the law enforcement agencies. The annual report shall also contain a list of law enforcement agencies which have failed to meet the reporting requirements and a summary of any action which has been taken against the noncomplying agency by the Office of the Comptroller.

(c) Neither the law enforcement agency nor the entity having budgetary control over the law enforcement agency shall anticipate future forfeitures or proceeds therefrom in the adoption and approval of the budget for the law enforcement agency.

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