Florida Law
Florida Land Use & Environmental Law
Land Use & Environmental Law
State and federal land use and environment laws can touch many areas of business. Awareness of laws and regulations in this area can help a savvy business owner avoid substantial future costs and liability for noncompliance. In addition, businesses that comply with environmental laws and land use regulations are more likely to avoid exposure to liability for toxic torts. This chapter identifies and describes some of the primary land use and environmental issues of concern to business owners.
Land Use Law
There are laws that may impose specific standards regarding
how property can be used, such as how a building can
be built, how big or small it can be, and where it
may be placed on the property. These specifications
may be laid out in local regulations or in building
codes. Building codes are developed to protect public
health and safety. To ensure compliance with building
codes, many municipalities require that property owners
obtain building permits before they begin any type
of construction or development.
On shorelines, the state adds other rules regarding the size and shape of buildings as well as their locations on lots to these local regulations. The additional regulations are intended to avoid adverse environmental consequences resulting from building construction.
Other kinds of land use regulations serve to protect the environment. Any development that may have an effect on the environment must conform to local, state and federal regulations. For example, the National Environmental Policy Act is a federal law that requires federal agencies to create environmental impact statements and give permission to developers planning projects that could adversely affect the environment. Such statements detail the effects of projects on areas such as air and water quality, safety and wildlife.
Zoning
Zoning regulations are a particular type of land use
control. Their purpose is to control and regulate development
and growth of a community in a way that is best for
the general public as determined by local government.
This is accomplished by dividing a community into areas
(zones) that can be used only for certain purposes.
Zones generally fall into four basic categoriesresidential, commercial, industrial and agricultural. Most cities or counties further divide property into much more intricate specifications, such as a zone for single-family houses within a residential area, or zones for light-industrial and heavy-industrial operations.
It is important to find out exactly how a property is zoned, for this could have serious consequences on how the property can be used both at the present time and in the future. Zoning ordinances are changed through amendments. Such changes can be sought by an individual property owner or by local governments. The changes must be determined to be in the best interest of the community, and the opinions of persons affected must be sought through public hearings after notice in compliance with the law.
Another way to seek relief from zoning laws is through a special use permit. Such permits make exceptions for uses of property that are not otherwise allowed under the zoning laws. Other ways around zoning laws include spot zoning, which rezones a small area or even one plot of land. Again, this is only allowed if it benefits the community.
Environmental Law
Some business owners are so concerned over potential
liability that their environmental concerns may make
or break deals. The laws regulate numerous activities
ranging from the handling of dangerous chemicals and
the disposal of toxic waste to the building of new
facilities and the rights of workers to know which
chemicals are present in the workplace.
Regulatory Agencies
During the 1960s, both federal and state legislators
became aware of the need to protect the environment,
and began passing laws in an effort to clean up pollution
and to protect persons and places from further contamination.
As legislators enacted more laws and regulations, the
need for an agency to oversee and coordinate these
efforts to protect the environment became apparent.
President Nixon issued an executive order establishing
the Environmental Protection Agency (EPA). Its mission
was to establish regulations, set standards for emissions,
determine which chemicals are hazardous and coordinate
its policies with the various states programs.
In 1993, Florida's Department of Environment and Department of Natural Resources merged into the Department of Environmental Protection (DEP). The Department has responsibility for traditional natural resource management programs, such as state parks, state land ownership, fisheries and marine husbandry, as well as coastal and wetlands protection, mine reclamation, water management and quality, solid and hazardous waste management, air quality control, electric and gas facility siting, and the Florida Marine Patrol. Much of the day-to-day business and permitting is handled at the DEP district and branch offices.
The Resource Planning and Management (DRPM) division of the Florida Department of Community Affairs regulates large residential, commercial and industrial developments in coordination with local governments and the state's 11 regional planning councils.
In Florida, power over environmental concerns generally starts at the local level as numerous regulatory bodies have been established in the counties. Florida has neither a state environmental policy act nor a statewide regulatory appointed board. All major projects are reviewed at the local and regional levels with appeals made to the governor and the governor's cabinet.
Broad Categories of Environmental Concern
Four categories of environmental concern are combined
and treated under the same broad regulatory structure.
These categories include water quality, air pollution,
hazardous waste and solid waste.
Water Quality
Businesses are responsible for the effect their operations
may have on water quality. Because the state's primary
industry is tourism, Florida has one of the most comprehensive
water protection programs in the United States. Many
water protection programs are administered by more
than one agency, while other business practices are
governed by the United States Army Corps of Engineers.
National Pollution Discharge Elimination System (NPDES) permits are required of anyone who intends to emit any pollutant into state surface waters, including noncontact cooling water and air conditioning or heat-pump water. If the discharge goes to a public sewer, NPDES permits are not required, except for certain industries. These categorical industrieswhich include leather, glass, asbestos, rubber and timber producers, are subject to EPA requirements. Surface water discharges not subject to NPDES requirements are subject to the DEP's district requirements. However, because Florida has not assumed control of the NPDES permitting program, firms must apply for permits to the EPA's Region IV office in Atlanta, Georgia. The EPA may not issue a permit, however, without the state's approval.
In addition to water pollution control, Florida has programs for ground water protection, water consumption, storm water discharges, wetland protection and coastal construction. The state has designated waters at Biscayne Bay National Monument, the Big Cypress National Preserve and the Everglades National Park as outstanding and/or special waters that must receive special protection.
Air Pollution
Laws regulating air pollution are designed to limit
industry emission of airborne pollutants that may be
harmful to people, plants and animals. Florida construction
and operating permit applications are handled in the
district offices of the DEP. Sources with emissions
that exceed a certain level, and modification of such
sources, are subject to further review by the Bureau
of Air Quality Management. The standards were established
by the federal government through the Clean Air Act.
Florida made an initial submission under the Clean
Air Act operating permit program in 1993, but is uncertain
when it will make a final submission. In some instances,
Florida's standards are more stringent than the EPA's.
The Air Resources Management Division within DEP is
a helpful source of information concerning Florida's
air pollution control program.
As required by the EPA, the DEP reports an air pollution standards index (PSI) for cities with 200,000 or more residents. The index is based on measured levels of major air pollutants such as particulates, ozone, carbon monoxide, sulfur dioxide, andduring summermold and pollen counts. In other areas, levels may be estimated through computer modeling. The levels are a major factor in the State Implementation Plan (SIP) that the DEP must file with the EPA to demonstrate attainment of federal air quality standards. Attainment or non-attainment affects the issuance of permits to businesses that emit pollutants.
Emission of pollutants can occur either directly or indirectly. Indirect sources include the vehicle emissions from heavy traffic drawn to certain businesses locations, such as hotels and shopping centers. Direct emissions are those that come from buildings, machines or processes that emit pollutants. A person who owns or operates a facility that emits pollutants must comply with all applicable air pollution controls, and may be required to obtain a permit. In most cases, at least 180 days are needed for processing a permit application.
Some DEP rules apply even though the business does not have direct air emissions that require permits. Businesses are liable for air pollutants such as odors, dust that may be carried by the winds as a result of business operations, and smoke caused by open burning. Businesses must notify the DEP immediately of any releases to the air that might endanger human health, damage property, or create a public nuisance, and the business must take any steps necessary to prevent such releases. Businesses that should be particularly aware of air quality rules include those that use boilers, incinerators, generators and solvent-borne coatings, as well as grain elevators, concrete plants, and sand, gravel and building demolition operations.
Indoor air quality has received attention in recent years. Sick-building syndrome refers to a building with extensive indoor air pollution that causes its inhabitants to suffer physical symptoms, and is most likely to occur in buildings constructed between 1973 and 1990, due in part to inadequate ventilation. Contributors to indoor air pollution include formaldehyde in particle board, plywood, furniture and carpets; benzene in synthetic fibers, plastics and cleaning supplies; mercury and lead in paint; asbestos; dust; pollen; mold; and tobacco smoke. Under the Florida Clean Indoor Air Act, the Department of Health and Rehabilitative Services has established rules governing smoking in the workplace. Smoking is prohibited in the workplace except in designated areas. Asbestos is discussed in more detail later in this chapter.
Hazardous Waste
Hazardous waste is waste that may cause serious illness
or death or is otherwise dangerous to human health.
Under Florida law, each industry generating waste is
required to determine whether or not the waste is hazardous.
The DEP has adopted rules that list hazardous wastes
and identify their characteristics, and established
procedures by which hazardous wastes may be identified.
A waste is said to exhibit a hazardous characteristic
based on its ignitability, corrosivity, reactiveness,
toxicity, infectiousness, radioactivity, mutagenicity,
carcinogenicity, teratogenicity, bioaccumulative effect
and persistence and degradability in nature.
Generators and transporters of hazardous waste, as well as operators of treatment, storage, and disposal facilities, must comply with all applicable rules, including any general rules not yet incorporated into the state rules. Transporters must have an EPA identification number and be registered to haul hazardous waste in the destination state. Generators are required to have an EPA identification number and a license (renewable annually), and they must submit an annual disclosure statement. All generators must name an emergency coordinator who is on call for disasters. They also must post emergency notification information and locations of emergency control equipment and alarms. If a spill occurs, the emergency coordinator or person in control must contain it, clean it up and call the National Response Center and the Florida Emergency Response Commission.
Due to the permeability of the soil and the high water table in Florida, future hazardous waste landfills will be prohibited. Even with provisions for a disposal facility, Florida exports a large portion of its hazardous waste out of state.
The DEP is the regulatory authority for hazardous waste, but the counties and the regional planning councils are very involved in hazardous waste regulation as well. The DEP sets guidelines and reporting standards, then monitors and provides assistance to the counties and regions in carrying out their hazardous waste assessments. However, the hazardous waste siting law permits the state to override local government restrictions in certain circumstances. Along with setting standards and providing technical assistance, the DEP has developed a Hazardous Waste Information Grant Program and a Hazardous Waste Management Trust Fund. It even established "amnesty days" for the purpose of purging small quantities of hazardous waste from homes, farms and small businesses.
Superfund
Superfund laws were enacted to identify and clean up
sites that have been contaminated by hazardous substances.
States, as well as the federal government, have enacted
superfund laws. Florida's program generally mirrors
the federal act. Superfund laws impose liability on
those responsible for release of a hazardous substance,
pollutant or contaminant. The liability is "strict
liability," meaning that it does not matter whether
the company was negligent. If the company or person
was the cause of the contamination, it is liable. Further,
this liability can be enacted retroactively so that
the company or person responsible may be liable for
contamination that occurred before the law was enacted.
Penalties for noncompliance with federal and state
statutes in this area are severe.
Generally, persons who owned or operated a facility when contamination occurred, or who transported or disposed of the contaminant, can be held responsible. However, under the innocent landowner exclusion, an owner of contaminated property may not be liable if he or she did not know or had no reason to know of the contamination and was in no way associated with the contamination. In addition to the persons named by statute as responsible for the contamination, courts have extended liability to those who held an interest in any corporation responsible for the contamination and who had the power to prevent the damage from occurring. Therefore, corporate officers, directors and even shareholders can be held personally liable for the cleanup. Parent and successor corporations have even been held liable under Superfund. An employee may be liable only if he or she knew the substance was hazardous and acted negligently, but an employer is responsible regardless of the degree of care exercised by an employee. Responsible persons under Superfund laws are also referred to as potentially responsible parties or PRPs.
PRPs may have to pay the costs incurred by the state to clean up and remove the damage or contamination. The only defense to the Superfund laws recognized by the courts is that the release of contaminants was caused by an act of God, an act of vandalism or war or an act of a third party.
Once a contaminated site has been discovered, an extensive system of assessment, cleanup and monitoring begins. Researchers must determine the total scope and effect of the contamination as well as the best way to conduct the cleanup. Also, monitoring of the site may go on for many years after the initial cleanup has been completed.
Community Right-to-Know
Under federal law, businesses that manufacture, store
or use hazardous substances must report their inventories
to local emergency-planning agencies to help these
agencies in the event of an unplanned release, fire
or similar disaster. In Florida, the agency that collects
the information is the Florida Emergency Response Commission
of the Department of Community Affairs. In addition
to inventories, employers are required to report estimates
of maximum combined quantities of hazardous substances
and the name of a responsible person who is always
on call in case of emergency. Filing fees are determined
by a formula based on the number of chemicals reported.
Solid Waste
Solid waste includes garbage, refuse, yard trash, clean
debris, special waste, ashes, sludge and other discarded
material including solid, liquid, semisolid, or contained
gaseous material resulting from domestic, industrial,
commercial, mining, agricultural or government operations.
Florida's solid waste management law places responsibility for most solid waste management on the local governments. The state's responsibility is in guidance, assistance and the setting of standards. The law encourages resource recovery to include both waste-to-energy facilities and recycling activities. Along with its "amnesty day" program to dispose of hazardous material, the state has adopted solid waste rules to reduce the levels of metals and toxic material in various products and has set up recycling programs to deal with these materials as well.
Florida law prohibits placing tires, lead-acid batteries, used motor oil, mercury-containing devices and other such material in landfills. Often, the rules regulating what can be placed in the trash are more strict for businesses than for households. Disposal of ash from solid waste is regulated by Florida's Solid Waste Combustor Ash rules. The rules require an ash residue management plan which includes storage, transportation and disposal mandates.
Special Categories of Environmental Concern
Some categories of pollutants or environmental nuisance
that might fit into one of the above broad areas of
environmental concern are treated separately under
the law because of some special characteristic of the
pollutant or the generator, or because political pressures
force the government to treat a type of pollutant or
nuisance differently from other similar pollutants.
Infectious Waste
Infectious waste includes laboratory waste, blood and
blood products, certain body fluids, research animal
waste and sharp instruments such as needles and scalpel
blades. The DEP's Solid Waste Management Section and
the Department of Health and Rehabilitative Services
formulated regulations that define medical and biohazardous
waste separately. Only the biohazardous waste is required
to be either incinerated or autoclaved. Generators
and handlers of this waste must be registered with
the state. Because the regulations governing infectious
waste are quite technical, generators should seek expert
advice to devise procedures for collection, storage,
marking, transportation and disposal of infectious
waste.
Asbestos
Asbestos is listed as a hazardous substance under Superfund
laws. Different federal and state agencies regulate
asbestos outside of the workplace. The EPA regulates
the reporting of commercial and industrial uses of
asbestos and the control and abatement of asbestos-containing
materials in schools. Emissions of asbestos into the
air are regulated under the federal Clean Air Act and
by Florida air pollution control standards. Various
federal and state laws regulate discharge of asbestos
into waters.
Asbestos exposure in the workplace is governed by the federal Occupational Safety and Health Administration (OSHA) and is enforced by the Florida Department of Labor and Employment Security. In most instances, state law mirrors federal law, but state law imposes stricter penalties on violators and requires greater employee access to information.
The basic legal requirement for all areas of business except construction is to maintain a workplace that is free of asbestos hazards. If the concentration of airborne asbestos fibers rises above a certain level (the threshold level), a business must begin air monitoring and medical surveillance of employees. If the levels rise above specified maximum levels (permissible exposure limits), businesses must provide employees with protective clothing and equipment, such as respirators, and make sure that they are used. The protective gear must be removed only in designated changing rooms and stored in closed containers to prevent spreading asbestos in the air. The gear must be cleaned weekly, taking care not to release asbestos.
Requirements for constructionincluding alteration, repair, painting and decoratingare somewhat different from general industry standards. The strictest rules apply to asbestos abatement activities, while short-term, small-scale activities and construction operations in which asbestos does not exceed a threshold level for more than 30 days per year are exempt from some requirements. Medical surveillance is required less often under the construction standard than under the general industry standard. Demolition of buildings, except for apartment buildings with fewer than four units, must be reported to the DEP and the EPA at least ten days prior to the start of asbestos removal or, if there is no asbestos involved, at least ten days prior to demolition.
Under both the general industry and construction standards, employers must institute a training program for employees who may be exposed to asbestos concentrations above the threshold level. Violations of asbestos standards may result in monetary and criminal penalties.
Storage Tanks
Abandoned or leaking storage tanks are common sources
of water and ground pollution. Many tanks that once
held toxic substances such as petroleum were buried,
poorly maintained and eventually forgotten. Years after
they were last used, they continue to pollute the soil
surrounding them and can be a major liability for property
owners. Federal and state storage tank regulations
are intended to prevent the release of substances that
may be hazardous to human health and the environment.
The regulations also contain provisions for the cleanup
of leaks and damage caused by these storage tanks.
In Florida, the regulatory program for leaking underground storage tanks is managed by the Bureau of Waste Planning and Regulation in the Waste Management Division of the DEP. The Early Detection Incentive Program was set up to encourage owners of leaking storage tanks to repair and clean up by reimbursing them through the state's Underground Petroleum Environmental Response Act trust fund. This fund closed in 1993 but some cleanups are still proceeding. The state now offers coverage to owners and firms with certain levels of insurance and is working to phase out this coverage so that eventually private insurers pay for these cleanups.
Electromagnetic Fields
Electrical and magnetic fields surround all electrical
conductors, such as radio, television and microwave
transmitters, transmission lines and personal computers.
Although building materials shield electrical fields,
magnetic fields pass easily through almost anything,
including buildings and the human body. Some research
studies suggest that electromagnetic fields (EMFs)
may play a role in diseases such as cancer and Alzheimer's
disease. Concern over possible deleterious health effects
has resulted in job-related litigation involving claims
of detrimental on-the-job exposures to EMFs, although
OSHA currently does not regulate EMF exposure in the
workplace.
Large commercial buildings often have transformer and switching rooms that generate extremely strong EMFs, and office wiring can produce high fields. Computer monitors and copy machines are two common types of office equipment that produce intense magnetic fields. The fields projected by computer monitors are much stronger at the backs and sides of the monitor than at the front. Offices can be designed to minimize workers' exposure to the sides and backs of other workers' monitors, and thus, their exposure to EMFs.
In Florida, electrical hazards are overseen by the Department of Health and Rehabilitative Services but as of yet there are no regulations in place dealing with electrical and magnetic fields. The state's air pollution control rules include standards for electric and magnetic fields. As more research on the topic is completed, it is expected that litigation and regulation related to EMFs will increase.
Stray Voltage
Stray voltage is a phenomenon that has become an issue
in dairy farming. Under certain circumstances, electrical
use and distribution lines on a farm can result in
low voltage electrical current that flows through cows,
affecting the animals in various ways and often resulting
in a decrease in milk production. Dairy farmers have
successfully sued electrical utilities, holding them
liable for milk production loss. In many cases, the
source of the problem is incorrect or improper wiring,
faulty electrical equipment, improper grounding, dirt,
moisture or bad connections. Electrical hazards such
as these are overseen by Florida's Department of Health
and Rehabilitative Services. Questions concerning stray
voltage should be directed to the Department, a local
electrical utility or the Public Utilities Commission.
Recycling
The Florida Legislature enacted recycling laws that
grant authority to counties and municipalities to plan
and provide for acceptable solid waste management.
Each county is responsible for its own recycling programs,
recycling facilities and information campaigns to educate
the general public. The law also encourages the development
of the state's recycling industry by promoting the
development of markets for recycled items and requiring
state agencies to promote recycling through their procurement
policies.
Resources
Florida Department of Community Affairs, State Resource
Planning and Management Division, 2740 Centerview Drive,
Tallahassee, FL 32399-2100, (904) 488-2356.
Florida Department of Environmental Protection, Headquarters,
3900 Commonwealth Boulevard, Tallahassee, FL 32399-3000,
(904) 488-1554.
Other DEP telephone numbers:
*Office of Communications (904) 488-1073
*Office of Environmental Education (904) 488-7326
*Storm Water and Nonpoint Source Management Section,
Bureau of Surface Water Management (904) 488-0782
*Water Management Division, (904) 488-0130
Florida Department of Health and Rehabilitative Services,
1317 Winewood Boulevard, Building B, Tallahassee, FL
32399-0700, (904) 488-7325.
Florida Department of Labor and Employment Security,
Division of Safety, 2002 Old St. Augustine Road, Tallahassee,
FL 32301, (904) 488-3044.
Bureau of Emergency Response, (904) 488-2974.
Florida Public Service Commission, 2450 Shumard Oak
Boulevard, Tallahassee, FL 23299-0850, (904) 413-6344,
Fax (904) 487-1716.
National Response Center, (800) 424-8802.
United States Army Corps of Engineers, South Atlantic
Division, 77 Forsyth Street, SW, Atlanta, GA 30335-6801,
(404) 331-6711; District Office, P.O. Box 4970, Jacksonville,
FL 32232-0019, (904) 232-2241.
United States Environmental Protection Agency, Region
IV, 345 Courtland Street, Atlanta, GA, 30365, (404)
347-4728.
Florida Department of Environmental Protection Districts:
Central District, 3319 Maguire Boulevard, Suite 232,
Orlando, FL 32803-3767, (305) 894-7555.
Northeast District, 7825 Baymeadows Way, Suite B200,
Jacksonville, FL 33256-7590, (904) 448- 4300.
Northwest District, 160 Governmental Center, Pensacola,
FL 32501-5794, (904) 436-8300.
South District, 2295 Victoria Avenue, Suite 364 West,
Ft. Myers, FL 33901, (941) 332-6975.
Southeast District, 400 North Congress Avenue, West
Palm Beach, FL 33401, (407) 681-6600.
Southwest District, 3804 Coconut Palm Drive, Tampa,
FL 33619-8318, (813) 744-6100.