In light of a recent decision by the First District Court of Appeal, it may be that the only way a local government can lawfully regulate air pollution is through a local air pollution control program approved by the Department of Environmental Protection ("DEP") pursuant to Fla. Stat. ch. 403.182. This report was drafted to assist counties that seek to regulate primarily stationary sources of air pollution within their borders by illustrating how eight Florida counties are currently administering DEP-approved local air pollution control programs ("APCPs").

     Section A of this report paints a macro-level picture of the counties with APCPs, by comparing such characteristics as population, land area, revenues, and air quality status. Section B investigates the sources of authority that underlie the APCPs. Section C examines the degree to which the counties have received delegated authority from DEP. Section D highlights the major steps and criteria of the DEP approval process. Section E explores the extent to which approved APCPs have implemented standards that are either (1) stricter than state or federal rules or (2) regulate areas for which there are no defined state or federal standards. Section F addresses the due process requirements for APCPs that issue state permits. Finally, Section G details sources of funding that are available to APCPs.

     Eight counties (Broward, Miami-Dade, Duval, Hillsborough, Orange, Palm Beach, Pinellas, and Sarasota) currently have APCPs that are approved by the Florida Department of Environmental Protection under Fla. Stat. ch. 403.182. [1] These counties range in population from 311,000 (Sarasota) to 2,070,600 (Miami-Dade), [2] and cover land areas from 309 square miles (Pinellas) to 2,578 square miles (Palm Beach). [3] In terms of finances, the counties generate anywhere between $379 million (Sarasota) and $5.11 billion (Miami-Dade) per year in total revenues. [4]

     These eight counties have a variety of air pollution problems. Seven of them have previously held the classification of ozone nonattainment area, [5] and are currently designated "air quality maintenance areas" for ozone. [6] In addition, Hillsborough and Duval Counties are "unclassifiable" for sulfur dioxide, [7] and parts of those counties are designated "air quality maintenance areas" for particulate matter. [8] Hillsborough County also has some locations that are designated "air quality maintenance areas" for lead. [9]

     These air quality problems are caused by varying mixes of mobile and stationary sources. Generally, ozone is a by-product of vehicular emissions, so it is not surprising that six of the seven counties with an "air quality maintenance area" designation for ozone have over 1,000 registered vehicles per square mile. [10] By contrast, Sarasota County, which is in compliance for ozone, has 722 registered vehicles per square mile.

     In terms of stationary sources, the number of facilities that meet the threshold for Title V major source permits varies widely by county, from zero in Sarasota County to approximately forty-five in Hillsborough County. [11] Though comparable data regarding lesser facilities was not available for all counties, it appears that each county has between 150 and 400 facilities that fall under a Title V general permit or a state or local permit. The exception is Miami-Dade County, which has the most extensive permitting program - it manages approximately 4,000 permits. [12]

     Clearly, many counties adopted their air programs to address serious air pollution problems. However, at least one county adopted its program to address air quality before it became a problem. One rationale for adopting a local air program is to provide greater resources to air pollution control than the state will allocate. For example, one county explained that it had approximately the same number of staff persons dedicated to air as the DEP District Office (which has jurisdiction in over a dozen counties). Accordingly, because it has more representatives per square mile, the county believes it can more effectively monitor ambient air quality, investigate citizen complaints, issue permits, and enforce permit limitations.

     All eight counties with APCPs have home rule charters. Still, seven of the eight APCPs (all except Miami-Dade's) are operated by entities that were created or authorized pursuant to special acts of the legislature. [13] Of those seven entities, four (Broward, Orange, Hillsborough, and Duval [14]) were originally created or authorized before the 1968 constitutional revisions gave counties "home rule" authority, and another (Palm Beach [15]) was authorized in 1970, before the legislature executed "home rule" through amendments to Fla. Stat. ch. 125. [16] In the pre-home rule era, county authority was restricted to powers expressly granted by the legislature. As such, before 1971, authorization by special act of the Legislature was the only way a county could allocate resources to air pollution control.

     At the time of this writing, this author was not able to determine why the remaining counties' APCPs were authorized by special act, rather than simply created under the authority of Fla. Stat. ch. 125(1)(j), which provides "[t]he legislative and governing body of a county shall have the power to . . . [e]stablish and administer programs of . . . air pollution control . . . ." However, even though no authority requires it, the fact that seven of eight of the currently operating APCPs draw their authority from special acts suggests that a county that seeks to initiate a local air pollution control program should consider basing the authority of that program on a special act.

     Generally, DEP delegates three functional categories of activities to APCPs: monitoring, compliance, and permitting. [17] A functional delegation from DEP includes responsibility for all pollutants regulated by DEP. In other words, DEP will not approve a local air pollution control program that only addresses a limited number of these pollutants. Still, even if DEP does not approve a local air pollution control program, it may contract with a county to perform a task such as ambient air quality monitoring.

     According to the Division of Air Resources Management (DARM) guidance memo DARM-OGG-04, APCPs must, at a minimum, take a lead role in monitoring and compliance activities, and provide staff to comment on permit applications. [18] APCPs must also cooperate with DEP on mobile source emissions control, although local governments generally have no regulatory power in that arena. [19] Beyond the minimum requirements, DEP has the statutory authority to almost completely delegate monitoring, compliance, and permitting functions to a local air program. [20]

     Currently, six of the eight APCPs (Broward, Miami-Dade, Duval, Hillsborough, Palm Beach, and Sarasota) have near-complete delegation of monitoring, compliance, and permitting functions. The other two programs (Orange and Pinellas) have a lead role in monitoring and compliance, and provide comments on permit applications. It appears that most APCPs start with the minimal delegation of authority and expand over time to include permitting authority.

     The DEP local pollution control program approval process is set forth in a guidance memo, DARM-OGG-04. Essentially, the guidance memo gives some specificity to the provisions of Fla. Stat. ch. 403.182, and details the state funding formulae for APCPs.

     The process begins when a county files a petition with the Secretary of DEP. Then, after publishing notice in the Florida Administrative Weekly, DEP examines the air pollution control program's organizational and management effectiveness, staff capabilities, and the nature and scope of its current operations, as well as the county's funding commitment, [21] ordinances, and enforcement mechanisms. [22]

     DEP will not approve a local air pollution control program until: (a) it "has demonstrated its ability to adequately administer the appropriate parts of Chapter 403, Florida Statutes, and the air pollution control rules of the Department, within the county;" (b) the county has entered into a specific operating agreement with DEP, outlining the responsibilities of the county and DEP; and (c) the county enacts appropriate air pollution control ordinances or regulations. [23] After the county has met these criteria, it must publish in a local newspaper a notice of proposed agency action on the petition, and submit proof of publication to DEP. DEP will then wait at least 14 days to take action on the petition.

     DARM-OGG-04 was written under the assumption that local governments have home rule power that extends to air pollution control. Specifically, DEP will not approve a local air pollution control program until the local government implements it and demonstrates that it is effective. Yet, recently, in Florida Rock Industries v. Alachua County, the First District Court of Appeal stated that a county air pollution ordinance "may not, either standing alone or as part of a local pollution program, be effective in the absence of approval from DEP." [24]

     The Florida Rock decision thus creates a "chicken and egg" problem for local governments that wish to seek DEP approval for a local air pollution control program. Put simply, the next local government that seeks DEP approval for a local air pollution control program may find itself litigating the issue as to whether local air pollution control program implementation may come before DEP approval.

     APCPs may set standards for air pollutants that are stricter than those set by the federal and state governments. [25] They may also set standards for pollutants that are not covered by the Clean Air Act or DEP regulations. [26] In the former case, DEP will enforce stricter local standards in place of its own standards. [27] However, DEP will not step in to enforce standards for pollutants that are not normally regulated by the state. [28]

     Of the eight counties with APCPs, five (Broward, Orange, Hillsborough, Miami-Dade, and Pinellas) enforce some standards that are stricter than their federal and state counterparts. For example, Broward County's stricter standards apply to particulate matter ("PM"), hydrochloric acid ("HCl"), and sulfur dioxide ("SO2") emissions from biohazardous waste incinerators ("BWIs"). [29] Orange County also has stricter requirements for PM emissions from BWIs. [30] Moreover, due to a great excess of incineration capacity, Orange County requires potential operators to obtain a certificate of need prior to construction of a BWI facility. [31] Like Orange and Broward Counties, Palm Beach County also has stricter regulations for BWIs. Palm Beach County not only has more stringent requirements for PM, but also for heavy metals, dioxins, and opacity of BWI emissions. [32]

     Hillsborough County's strict standards for SO2 and nitrogen oxide (NO2) emissions from fossil fuel steam generators (power plants) have been incorporated into 62 Fla. Admin. Code 296.405 and 296.406. Hillsborough County also prohibits weak nitric acid plants from producing visible emissions (the state standard is 10% opacity), and requires trucks that load liquid petroleum products to be vapor-tight. [33] Similarly, Miami-Dade and Pinellas County have stricter standards for stage 2 and stage 1 fuel vapor recovery systems, respectively. [34] Miami-Dade also has strict standards for ambient SO2 and SO2 emissions from various sources. [35] Finally, Pinellas County has stricter standards for asbestos. [36]

     All eight counties regulate a variety of pollutants for which the state and federal governments do not have defined standards in place. [37] For example, Palm Beach County regulates dioxin and heavy metals emissions from biohazardous waste incinerators, [38] and Miami-Dade County has a unique stratospheric ozone protection program. [39] Additionally, all of the counties regulate one or more of the following: open burning, noise, and objectionable odors.

     For major sources of air pollution, [40] Fla. Stat. ch. 403.0872 sets the standards for procedural due process. That statute provides that major source operating permits (except general permits) are subject to the Florida Administrative Procedure Act ("FAPA"), [41] except insofar as FAPA is inconsistent with Chapter 403.0872's own procedures. Generally, administrative review occurs at the draft permit stage. [42] Following the administrative hearing, the hearing officer's comments are incorporated into the proposed permit, which is reviewed by the EPA. [43] After the EPA approves the permit, judicial review in circuit court is available under Fla. Stat. ch. 120.68. [44]

     For other state delegated permits, Fla. Stat. ch. 403.90(b)(2) provides that administrative review under Fla. Stat. ch. 120 is available to "determin[e] whether the action is in accordance with existing statutes or rules and based on competent substantial evidence . . . ." People who are substantially affected by an agency's decision on a permit may "seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit court . . . ." However, "circuit court review [is] confined solely to determining whether final agency action is an unreasonable exercise of the state's police power constituting a taking without just compensation." The statute defines "agency" as "any . . . unit or entity of state government," and "permit" as "any permit or license required by [Fla. Stat. ch. 403]."

     Since major source permits are already covered by Fla. Stat. ch. 403.0872, Fla. Stat. ch. 403.90 seems to apply to all other state permits, including Title V general permits. Accordingly, decisions of counties that exercise delegated authority to issue state permits are subject to challenge under FAPA.

     There are numerous sources of funding for APCPs. The federal government, through the Environmental Protection Agency, offers grants under §§ 103 and 105 of the Clean Air Act. [45] Section 103 grants are available to local governments to fund ambient air quality monitoring projects. [46] Section 105 grants are available to fund personnel, supplies, equipment, training, travel, and other general expenditures related to the administration of the local air program. [47] Florida also provides funding for APCPs through the Air Pollution Control Trust Fund [48] and contractual arrangements between DEP and counties for permitting, monitoring, and compliance functions. These contractual arrangements are included in air pollution specific operating agreements, and may include sharing revenues from such sources as asbestos fees, [49] Title V permit fees and state permit fees.

     APCPs may also issue local permits for sources not covered by other permitting systems. Generally, local permit programs will generate application fees and renewal fees. Furthermore, local permit regulations may provide for the assessment of fines on facilities that do not comply with their permits. For example, Miami-Dade County requires a variety of commercial entities to obtain an operating permit (and pay a corresponding fee) from the Department of Environmental Resources Management. [50] The County also enforces its environmental regulations through such means as scheduled fines and civil damage penalties. [51]

     Local commitment of resources is critical, especially during the creation of the program. Since Florida requires DEP approval of local air programs, Section 105 grants might not be available to local governments until after their programs are approved. Moreover, DARM-OGG-04 states that DEP will not include tag fees when it analyzes the financial condition of a local air program during the approval process. Thus, a local government must essentially show that it has the ability and commitment to operate its program without outside funding.

[1] Fla. Stat. ch. 403.182(1) (1997) provides, in pertinent part: "All local pollution control programs . . . must: (a) be approved by the [D]epartment [of Environmental Protection] as adequate to meet the requirements of this act and any applicable rules and regulations pursuant thereto."

[2] University of Florida Warrington College of Bus. Admin., Bureau of Econ. and Bus. Research, 1998 Florida Statistical Abstract, tbl. 1.20 (32d ed. 1998) [hereinafter Florida Statistical Abstract]

[3] Florida Association of Counties, County (visited Apr. 13, 1999) <http://www.fl-counties.com/ctytab.htm> [hereinafter FAC Listing]

[4] Florida Statistical Abstract, supra note 3, tbl. 23.83

[5] Broward, Dade, Duval, Hillsborough, Orange, Palm Beach, and Pinellas

[6] See Fla. Admin. Code Ann. r. 62-204.340(4)(a) (1999)

[7] See Fla. Admin. Code Ann. r. 62-204.340(3)(b) (1999)

[8] See Fla. Admin. Code Ann. r. 62-204.340(4)(b) (1999)

[9] See Fla. Admin. Code Ann. r. 62-204.340(4)(c) (1999)

[10] Registered vehicles per square mile equals the number of vehicles actually registered in the county divided by the total land area of the county. The figure was derived from data from the Florida Statistical Abstract, supra note 3, tbl. 13.32, and FAC Listing, supra note 4. Note that Palm Beach County, with its vast undeveloped and agricultural areas, has only 370 registered vehicles per square mile.

[11] Telephone Interview with Susan Cameron, Special Projects, Sarasota County Pollution Control Division (Mar. 9, 1999); Telephone Interview with Leroy Shelton, Hillsborough County Environmental Protection Commission (Mar. 10, 1999).

[12] Telephone Interview with H. Patrick Wong, Chief, Air Quality Management Division, Miami-Dade County Department of Environmental Resources Management (July 9, 1999) [hereinafter "Patrick Wong Interview"]. Of Miami-Dade's approximately 4,000 permits, roughly 1,900 regulate chloroflourocarbons (CFCs) under Miami-Dade's unique stratospheric ozone protection program. Between 650 and 700 of the permits regulate stage 2 vapor recovery at gasoline stations. These CFC and stage 2 vapor recovery permits do not fall into traditional local permitting categories.

[13] Miami-Dade County's program is administered by an agency that was created pursuant to Miami-Dade County's constitutional home rule powers.

[14] For Broward County, see 1965 Fla. Laws ch. 1338; for Duval County, see 1965 Fla. Laws ch. 1474; for Hillsborough County, see 1967 Fla. Laws ch. 1504; for Orange County, see 1967 Fla. Laws ch. 1830.

[15] See 1970 Fla. Laws ch. 862.

[16] The "home rule" provision of Article 8 § 1 of the 1968 Constitution was not self-executing. In other words, the legislature had to pass a law to implement the provision. The legislature executed the provision in 1971 through substantial amendments to Fla. Stat. ch. 125.

[17] See Guidance on Local Air Pollution Control Programs, Florida Dept. of Env. Prot., Div. of Air Res. Mgmt., Memorandum no. DARM-OGG-04, Part V [hereinafter DARM-OGG-04]. See also Air Pollution Control Specific Operating Agreement between the State of Florida Dept. of Env. Prot. and the City of Jacksonville Reg. and Env. Svcs. Dept. Air and Water Quality Div., Part III(1) (Jul. 29, 1997).

[18] See DARM-OGG-04

[19] See DARM-OGG-04 and "The Clean Outdoor Air Law," Fla. Stat. ch. 325.201 et seq. Note that Miami-Dade County implemented ordinances in 1985 that govern mobile source emissions and authorize enforcement through routine traffic stops. However, since the adoption of the state program in 1991, Miami-Dade has chosen not to enforce its own mobile source ordinances, but instead to implement the state program.

Also note that, though generally counties are pre-empted from mobile source regulation by the Clean Outdoor Air Law, a county may opt in to the vehicle inspection program under Fla. Stat. ch. 325.204 by a majority vote of its commissioners.

[20] See Fla. Stat. ch. 403.182(2) (1997)

[21] The county funding commitment requirement specifically excludes auto tag fee revenues generated pursuant to Fla. Stat. ch. 320.03(6).

[22] See DARM-OGG-04, Part IV(3)

[23] See Id. at Part IV(4)

[24] Florida Rock Industries v. Alachua County, 721 So. 2d 741, 743 (Fla. Dist. Ct. App. 1998)

[25] See Fla. Stat. ch. 403.182(1)(b)

[26] See Id.

[27] See Fla. Stat. ch. 403.182(6)

[28] Telephone Interview with Pat Comer, Senior Assistant General Counsel, Florida Department of Environmental Protection (May 7, 1999);

[29] Compare Broward County Code of Ordinances Sec. 27-178(II)(b)(1)-(3) with 62 Fla. Admin. Code 296.401(4)(a)-(c).

[30] Compare Orange County Code of Ordinances Sec. 15-557(b)(1)(a) with 62 Fla. Admin. Code 296.401(4)(a), (b).

[31] See Orange County Code of Ordinances Sec. 15-557(b)

[32] Compare Palm Beach County Code of Ordinances Sec. 11-235(I)-(III) with 62 Fla. Admin. Code 296.401(4)(a)-(c).

[33] See 1 Rules of the Environmental Protection Commission of Hillsborough County 3.63

[34] See Miami-Dade County Code of Ordinances § 24-20; Pinellas County Code of Ordinances § 58-138

[35] See Miami-Dade County Code of Ordinances § 24-17

[36] See Pinellas County Code of Ordinances §§ 58-146, 58-147, 58-149

[37] For the purposes of this analysis, a "nuisance" standard is not a "standard."

[38] See Palm Beach County Code of Ordinances § 11-235

[39] Patrick Wong Interview

[40] Though not stated explicitly in the statute, it appears these major sources are Title V sources.

[41] See Fla. Stat. ch. 120 (1997)

[42] See Fla. Stat. ch. 403.0872(6)

[43] See Fla. Stat. ch. 403.0872(7), (8)

[44] See Fla. Stat. ch. 403.0872(9)

[45] The relevant portion of § 103 of the Clean Air Act is codified as 42 U.S.C. § 7403(b)(3) (1999); § 105 of the Clean Air Act is codified as 42 U.S.C. § 7405 (1999)

[46] See e.g. 55 Fed. Reg. 52012 (1990).

[47] See CFDA: 66.001: Air Pollution Control Program Support (visited 4/17/1999) <http://aspe.os.dhhs.gov/cfda/p66001.htm>.

[48] See Fla. Stat. ch. 320.03(6) (1997). The Air Pollution Control Trust Fund is funded through a $1 surcharge on auto tags. If a county has an approved local air program, it is eligible to receive at least 50% of the tag fees it generates each year.

[49] See Fla. Admin. Code Ann. r. 62-257.400 (1999)

[50] Miami-Dade County Code of Ordinances § 24-35.1

[51] Miami-Dade County Code of Ordinances §§ 24-55, 24-56, 24-57